Study On Domestication and Implementation of AU Treaties - Synthesis Report

Study on Domestication and
Implementation of African Union

Treaties
Synthesis Report
The Benefits for AU Member States and Africa’s dynamic people
Charles Nyuykonge
International Consultant
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About “Accelerating the Ratification and Domestication of AU Treaties” Project
The project is designed to address challenges and bottlenecks associated with ratification and
domestication of 6 selected treaties, and help enhance the capacity of the AU for the medium
and long term to enable, manage the ratification process, and provide tailored support to
member states with domestication challenges. The project is implemented both at the regional
and national levels and aims to leverage UNDP’s presence in all AU Member States; in Kenya,
the project is implemented in close collaboration with the Ministry of Foreign Affairs.
The project focuses on the following objectives, which are inherently linked to the outcomes
of the project:
1. To ensure that the AU has legitimacy and meaning beyond its Headquarters in Addis Ababa
by linking the treaties it has developed at the continental level with positive impact on the lives
of ordinary Africans; this will ensure that the values on which the AU is built are protected and
advanced.
2. The African continent is better enabled to meet both the objectives outlined in the Agenda
2063 and the 2030 Agenda for Sustainable Development by providing a robust legal framework
in which they can be implemented at regional and country levels.
3. To improve harmonization between AU treaties and the different RECs on the continent -
thereby enhancing national planning processes and developing synergies across legal
frameworks. Fostering a harmonized approach among the RECs, which are guided by AU
agreements and principles, is expected to have a significant impact on relations within but also
between the RECs, and to facilitate cooperation for trade and human security in border regions.
4. To ensure the work of international development partners – including both bilateral and
multilateral actors – is anchored in, supportive of and leveraging AU treaties.
Six priority countries were selected jointly with the AUC and partners based on regional
balance, openness to civil society, ‘deep-rootedness’ of democratic system, legal diversity
(encompassing the three-major existing legal systems on the African continent) and willingness
to participate in this first phase of the project. These are Senegal and Burkina Faso (Western
Africa) Kenya (East/Horn of Africa), Tunisia (Northern Africa), Sao Tome and Principe
(Central Africa) and Mozambique (Southern Africa). The following 6 treaties have also been
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selected during the first phase:
1) African Charter on Human and People’s Rights, adopted in 1981
2) Protocol to the African Charter on Human and People’s Rights on the Rights of Women in
Africa (Maputo Protocol), adopted in 2003.
3) African Youth Charter, adopted in 2006.
4) African Charter on the Rights and Welfare of the Child, adopted in 1990.
5) African Charter on Democracy, Elections and Governance, adopted in 2007.
6) AU Convention on Prevention and Combatting Corruption, adopted in 2003.
The ratification and domestication of the treaties will have a significant impact on development
in the country as it gives basis for state consent to issues of common concern and enhances
government accountability to the people.
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List of Acronyms & Abbreviations
ACDEG African Charter on Democracy, Elections and Governance
ACHPR African Charter on Human and Peoples’ Rights
ACMPR African Commission on Human and Peoples’ Rights
ACRWC African Charter on the Rights and Welfare of the Child
AJS Association of Senegalese Jurists
APAC Association of African Communication Professionals
APRM African Peer Review Mechanism
ASCE Higher Authority of State Control and Fight against Corruption
AU African Union
AUABC African Union Advisory Council on Corruption
AUC African Union Commission
AUCIL AU Commission on International Law
CAJ Commission for Administrative Justice, Kenya
CEMIRIDE Centre for Minority Rights and Development
CNPVE National Council for the Prevention of Violence in schools (Burkina Faso)
COK Constitution of Kenya (2010)
COSEF Senegalese Council of Women
CRC United Nations Convention on the Rights of the Child
CSO Civil Society Organisations
DOJ Department of Justice
EAC East Africa Community
EALA East African Legislative Assembly
ECOWAS Economic Community of West Africa
FC Civil Forum
FGM Female Genital Mutilation
IEBC Independent Electoral and Boundaries Commission
ILO International Labour Organisation
IREC Independent Review Commission
KNHRC Kenyan National Human Rights Commission
MENA Middle East and North Africa sub-region
MFA Ministry of Foreign Affairs
MOF Ministry of Finance
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NEPAD New Partnership for Africa’s Development
NGEC National Gender Equality Commission, Kenya
NGEC National Gender Equality Commission, Kenya
NGO Non-governmental Organization
OAG Office of the Attorney General
OAU Organisations of African Union
ODI Overseas Development Institute
OLC Office of the Legal Counsel, African Union
PADS African Party for Democracy and Socialism
PARENA Party for African Renaissance
PDS Senegalese Democratic Party
PIT Party for the Independence of Labor
PM Prime Minister
PS Socialist Party
REC Regional Economic Communities
RND African Party for Democracy and Socialism
RSJ Network Siggil Jigeen
STP Sao Tome and Principe
UN United Nations
UNCAC UN Convention against Corruption
UN-CRC United Nations Convection on the Rights of the Child
UNDP United Nations Development Programme
UNDP United Nations Development Program
URD Union for Democratic Renewal
VCLT Vienna Convention on the Law of Treaties
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Table of Contents
About “Accelerating the Ratification and Domestication of AU Treaties” Project ... ii
Published by: ................................................... Error! Bookmark not defined.
Reviewed by: .................................................. Error! Bookmark not defined.
Design & Print by: ........................................... Error! Bookmark not defined.
List of Acronyms & Abbreviations ................................................................... iv
Acknowledgements ......................................................................................... ix
Executive Summary ......................................................................................... x
Democratic governance, transparency and human rights ...................................... xi
Rights of women............................................................................................ xii
Rights and welfare of the child and the youth .................................................... xiii
Recommendations ......................................................................................... xiv
I. Introduction and Background .................................................................... 1

The purpose .................................................................................................... 3
The impact ...................................................................................................... 4
Rationale for countries’ selection ....................................................................... 5
Research Methodology ..................................................................................... 5
Chapter 1 ...................................................................................................................... 8
The Quintessence of selected AU treaties and their beatitudes .............................. 8

1.1 The African Charter on Democracy, Elections and Governance (the
Democracy Charter) ....................................................................................... 8
Context and Background................................................................................... 9
The Issues ....................................................................................................... 9
The Rights .................................................................................................... 10
1.2 The African Convention on Preventing and Combating Corruption ..... 11
Context and Background................................................................................. 11
The Issues ..................................................................................................... 12
The Rights .................................................................................................... 12
1.3 The African Charter on Human and Peoples’ Rights (Also known as the
Banjul Charter)............................................................................................ 13
The Issues ..................................................................................................... 14
The Rights .................................................................................................... 15
The commitments .......................................................................................... 15
1.4 The Protocol to the African Charter on Human Rights and Peoples’
Rights on the Rights of Women in Africa ...................................................... 16
The Issues ..................................................................................................... 17
The Rights .................................................................................................... 19
1.5 The African Youth Charter ................................................................. 20
The Issues ..................................................................................................... 21
The Rights .................................................................................................... 21
The Commitments.......................................................................................... 22
1.6 The African Charter on the Rights and Welfare of the Child (ACRWC)
23
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The Issues ..................................................................................................... 24
The Rights .................................................................................................... 25
Chapter 2 .................................................................................................................... 26
Treaty-making: The Ratification and Domestication Process ................................ 27

2.1 Treaty Making and Formation ............................................................ 28
2.1.1. Treaty Negotiation ................................................................................ 29
2.1.2. Adoption and Authentication of the Treaty Texts ...................................... 30
2.1.3. Expression of Consent to Be Bound ........................................................ 31
2.1.4. Entry into Force .................................................................................... 33
2.2. Benefits of Treaty Making: the Flavor for African States ........................ 33
2.2.1 Domestication and implementation ........................................................ 35
2.2.2 A regional strategy .............................................................................. 36
Chapter 3 .................................................................................................................... 39
Current Status of Ratification and Domestication of African Union Treaties ....... 39

3.1 African versus UN treaty ratifications .................................................. 42
3.2 Justification and rationale of African treaties ....................................... 44
3.3 Domestication Experiences and Gaps ................................................... 46
3.1.1 Burkina Faso’s Experience with Domestication of AU Treaties ................ 48
3.1.2 Kenya’s Experience with the implementation of AU Treaties ................... 55
3.1.3 Mozambique’s experience with Implementation of Au Treaties ................ 62
3.1.4 Sao Tome and Principe’s experience with Implementation of AU Treaties . 71
3.1.5 Senegal’s experience with the implementation of AU Treaties .................. 72
3.1.6 Tunisia’s experience with the Implementation of AU Treaties .................. 78
Chapter 4 .................................................................................................................... 84
Understanding State Ratification and Domestication or Implementation

Challenges ................................................................................................................. 84
4.1 Political constraints to Domestication and Implementation of AU
challenges..................................................................................................... 84
4.2 Financial Constraints to Domestication and Implementation of AU
challenges..................................................................................................... 85
4.3 Operational Challenges to Domestication and Implementation of AU
treaties ......................................................................................................... 86
4.4 Impact of ratification and domestication of treaties .............................. 90
Chapter 5 .................................................................................................................... 95
Conclusion and Policy Recommendations.............................................................. 95

General factors inhibiting implementation ........................................................ 95
Policy recommendations ................................................................................. 96
To the AU, African Union Commission Office of the Legal Counsel and Treaty
bodies ........................................................................................................... 98
To development partners including United Nations and its agencies .................... 98
To African States ........................................................................................... 99
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To African Civil Society and Civil Society Organisations ................................... 99
Bibliography ............................................................................................................. 100
Appendixes .............................................................................................................. 101

4.5 Questionnaire/Sample Survey Used for Data Collection ...................... 101
4.6 List of Questionnaire Respondents & Interviewees ............................. 105
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Acknowledgements
As project lead, international consultant and coordinator, I would like to acknowledge the
invaluable contribution of the national consultants who are Zied Ayari (Tunisia), Silvia Nyaga
(Kenya), SOMA Abdoulaye (Burkina Faso); Maurice Soudieck Dione (Senegal) and both
Jonas Gentil and Ilza Amado (Sao Tome & Principe), in shaping the content of this report.
Additionally, the publication of this report would not have been possible without the support,
dedication, and UNDP governance division country team members who include but not limited
to Mailika Sloane Leconte, Seynabou Diaw Ba, Daouda Bale, Losseni Cisse, Aderito Santana,
Alissandra Ramos, Egidio Sigauque, Habiba Rodolfo, Amy Nkuna, Lor Mussagy Brian
Migowe,
The publication of this report would not have been possible without the support, dedication,
and leadership of the project team led by Mr David Omozuafoh and his colleagues, Ms Lucie
Boucher, Mr Kanil Lopes and Ms Selamawit Asrat.
In a special way, I would like to thank the approximate 100 Africans who responded to our
survey. Their feedback was illuminating in gauging where we are in terms of ratification and
understanding the factors which enable or inhibit the ratification of AU treaties. As a
consequence, this report belongs to the people of Africa who should consume it, assess it, and
use it to pursue their cause relentlessly.
Charles Nyuykonge
International Consultant
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Executive Summary
The aspirations of the African continent’s citizens have over the years been aptly described in
the African Union’s (AU) legal instruments, policy frameworks, and standards. The formation
of the Organisation of African Union (OAU) on the May 25, 1963 and its transition to the AU
in 1999 as the continental bodies charged with formulating international policy prepared the
ground for translating these instruments and frameworks into reality. The fiftieth anniversary
of the AU in 2013 provided a fitting opportunity to showcase its progress in impacting the lives
of the citizens of Africa. The AU has steadily showed its commitment to improving the lives
of Africans, at least at the policy formulation level, evident in the 49 legal instruments and
policy frameworks1.
The UNDP and the OLC believe that popularising, implementing, and domesticating these
treaties successfully at the national level will have a tremendous positive impact on the lives
of nearly 1 billion citizens of the African continent. Through several initiatives since the
inception of the project, the joint UNDP-OLC partnership has re-examined the imperative of
compliance with AU instruments by member states at the national level: looking at the progress
made by member states, and the implications of existing challenges and successes on realising
the aspirations set out in those treaties.
This report comprises four major chapters that discuss the status of compliance with six AU
treaties in six case study countries. An introduction to the project provides the contextual
background which discusses the implications of treaty ratification and domestication on
democratic governance, transparency and human rights; rights of women; the rights and
welfare of the child and the youth; anticorruption and development. In its background the
chapter offers a synopsis of the rationale for case studies, and research methodology. Chapter
one speaks to the benefits of treaty ratification and x-rays the contents of AU treaties under
review. Chapter two discusses the treaty making processes and unearths some nuances in the
different approaches which AU member states take. This helps in pointing out where there
might be hold-ups in the domestication process and as such projects towards supporting
member states can have a clear entry and anchor point. Chapters three explores attitudes of
African states and preferences for international treaties over AU treaties. The chapter equally
offers a persuasive justification for why AU treaties should be given preference while
concluding with an extensive survey of ratification and domestication experiences of pilot
countries with the view of showing slow and steady efforts by different stakeholders to reap
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from the benefits of rights enshrined in treaties. And chapter four discusses the challenges
which bedevil and stall treaty ratification and domestication: some of such challenges are
political, financial and operational considerations. That these challenges come with grave
consequences cannot be overstated and as such Chapter 5 is a synoptic conclusion which also
enlists a set of operational recommendations critical for accelerating the ratification and
domestication of AU treaties.
The report’s main conclusion is that efforts to establish mechanisms for implementing AU
instruments have been robust. However the actual implementation has not been as robust and
more efforts are needed. AU and its member states still remain committed to expressing their
aspirations for improved socio-economic and political development by formulating
instruments. This is an expression of their belief in the potential role that these decisions have
in transforming the continent to better the citizens’ lives.
In 2014 alone, the AU adopted six new legal instruments addressing various policy issues,
ranging from the decentralisation of government and cross-border cooperation, to cyberspace
security. These are positive steps towards improving lives and eradicating poverty. But
translating these steps into concrete results requires full compliance with the instruments’
provisions: Member states need to ratify, implement, and domesticate these decisions at the
national level.
A compliance snapshot of most countries, for instance, shows that apart from AU’s
foundational instruments like the Treaty Establishing the African Economic Community -
which has attracted 49 ratifications (91%) - those relating to good governance, transparency,
environment and natural resources, gender justice, and human rights have been signed by most
states but ratified by only a few, and at a slow rate. The challenge going forward is, therefore,
not so much the formulation of new policies but rather the implementation of those already
formulated. This will require political resolve and heightened institutional capacities. The
policy arguments and main messages of this report are summarized below
Democratic governance, transparency and human rights
Most AU member states where this research was conducted are on track with regard to
implementation of instruments that touch on democratic governance, transparency, and human
rights. These countries have passed laws and established institutions aimed at strengthening
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democracy, human rights and anti-corruption efforts. They have invested resources in
supporting these institutions to operate, reduce levels of corruption and make progress in the
delivery of services and in political, economic and social governance. Political participation in
these countries has increased as more institutions are enabling citizens to engage public
institutions. The number of civil society organisations has also increased and media freedom
is legislated.
Although this account speaks to positive progress, the challenges are equally immense. For
instance, in spite of the many laws enacted and institutions established to address corruption
between 2012 and 2014, the vice has gone up in Kenya and Nigeria. Neither Kenya nor Nigeria
has registered an anti-corruption perception index beyond 30 per cent since 2010, an indication
of poor performance and low gains in preventing and/or combating corruption. In Malawi, the
anti-corruption perception index has peaked between 2013 and 2014, while in Rwanda and
Tunisia, where corruption has been low, there have been slight increases in anti-corruption
perception indices. Ghana, Mozambique and South Africa have registered slight declines in
corruption while Senegal has experienced a significant decrease in the vice. Corruption not
only presents a stumbling block to political, economic and other reforms but also undermines
the effective implementation of all instruments, especially those related to elections, human
rights, natural resources, youth, peace and security. Increased control over the activities of civil
society organisations has undermined their sustainability, as have attacks on journalists and the
media. The effectiveness of political, legal, and economic reforms has been hampered by lack
of local ownership, Reform programmes are largely donor-dependent, thus limiting the
capacity to monitor them and innovate. Weaknesses in the existing reform frameworks as well
as low commitment of civil servants and political leaders to policy reform initiatives compound
these limitations.
Rights of women
There is considerable progress in establishing institutions and passing laws to protect women’s
rights, ban harmful practices, outlaw the abuse of females and prohibit their alienation. Most
countries have passed laws and adopted constitutions that guarantee the participation of women
in leadership and management positions.
However, the culture of patriarchy continues to negatively impact on gender relations in the
areas of power, production, distribution and governance, while harmful practices against
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women like Female Genital Mutilation (FGM) continue in most countries - without the
necessary intervention. Weaknesses in the application of the national constitution and the Penal
Code, stemming from inconsistencies, also create permissive legal environments that
perpetuate the violation of women and children’s rights. This impedes successful
implementation of related instruments - especially the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Women.
In terms of women participation, only Kenya has exceeded the target of 30 per cent female
membership in its parliament. Women constitute 56 per cent of the Members of Parliament in
Kenya, 43.03% in Senegal, 14.55% in Sao Tome and Principe, 42.4% in Mozambique and
24.88% in Tunisia. Still, the number of women in regional and district administration, the
judiciary, and other public institutions is still very low in all the countries.
Rights and welfare of the child and the youth
The African Charter on the Rights and Welfare of the Child is one of the instruments with the
highest number of ratifications at 47, representing 87 per cent of the AU member states. All the
case study countries have ratified the Charter. They have set up institutions such as ministries,
juvenile courts, and committees on the rights and welfare of the child. Most countries are also
implementing the Charter’s provisions on the right to education for children by providing free
books, transport and uniforms.
There has been an increase in enrolment of female students, and provision of free basic
education in many countries. Governments are allocating funds for children’s immunisation
programmes, with allocation being highest in Senegal and South Africa (100%), lowest in
Mozambique (24%), and between 45 per cent and 70 per cent in the other countries. Most
countries have also formulated national youth policies to enable young people to take part in
the formulation and evaluation of economic and social development policies, create jobs for
themselves; enable rural dwellers to acquire production capacity and assets to make it possible
for them to produce and participate in local, national and international markets as well as to
work with the private sector to enable it to create more jobs.
While these achievements are commendable, most countries still confront a number of
challenges in ensuring the welfare of the African child. Mortality rates for children under five,
for instance, have remained above 100 out of 1,000 births in Mozambique and Tunisia; and
between 50 and 90 in Ghana, Kenya, Senegal and Burkina Faso.
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The right to basic education has also not been equally enjoyed by children in rural areas. The
quality of education has declined and the number of school dropouts has increased as facilities
- such as libraries, number of desks, toilets and housing for teachers - remain a challenge even
in some of the middle income countries.
Youth unemployment remains a major challenge globally and in Africa particularly. This is
compounded by limited access to adequate financial resources to enable youth to start dynamic
and innovative businesses, lack of appropriate skills required in the labour market, lack of
entrepreneurial culture for most youth, lack of mechanisms for entry and re-entry into the labour
market, and limited access to information on national and foreign labour markets.
Recommendations
Full domestication and implementation of AU instruments will have a tremendous positive

impact on African citizens if member states move beyond ratification. Implementation reflects
a country’s commitment to actualise the provisions enshrined in the instruments. In order to
realise meaningful implementation, policy makers should consider the following
recommendations.
• AU and AU member states need to ensure policy coordination among their organs. At the
country level, especially, there is need for improved coordination between state agencies
and government arms that connect instruments’ aspirations to their intended results. Such
efforts will include the establishment of mechanisms for tracking, monitoring and reporting
progress and accountability for actions and results. This will help in identifying gaps that
require policy and infrastructural attention while also making implementation a goal-oriented
and time-consistent process.
• Establishing quality institutional frameworks at the national level for realising the policy
objectives of AU instruments is important. But this is not sufficient: Institutions need to be
empowered (to have the capacity) to design, formulate, and implement policies that fulfil
these objectives. This empowerment should include training and lending support to
government officials and critical stakeholders whose core work can be a vehicle for the
promotion of rights contained in AU treaties.
• Governments should also complement the existing institutions with strong laws that are
elaborate, stable, and backed by the national constitutions, rather than those that permit narrow
interpretations and collusion. Stronger anti-corruption laws and institutions, for instance, have
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yielded lower the levels of corruption.
• Governments should incorporate AU instruments’ obligations into their constitutions,

backed by - and not contrary to or separate from - independent national legislation. National
law should be seamlessly applied in relation to already ratified AU instruments. A
country’s extradition laws should, for instance, allow extradition for offences of universal
jurisdiction under international treaties and conventions (e.g. AU Convention on the Fight
Against Corruption) ratified by that country.
• Countries need to develop supreme universal laws that ensure consistency in the
application of both national constitutions and the Penal Code. Persons charged with
offences under the Penal Code should not be acquitted under the provisions of the Constitution.
Currently, the Cameroonian Constitution, for instance, affirms the right of women to dignified
treatment and protection of their integrity. However, there is no provision in the Penal Code
providing for protection against sexual harassment. Senegal’s Penal Code makes it an offence
to have carnal knowledge with a woman below the age of 16 years, yet the Constitution allows
marriage of girls aged15 years if the parents give their consent. Such a permissive legal
environment creates exit routes for offenders and perpetuates violation of women and
children’s rights, hence impeding implementation of related instruments - especially the
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women.
• AU member states should harness innovation, which has the potential to increase
skill formation, enhance productivity, and create youth employment opportunities. They
should also build institutional quality so that individuals and organisations are effective in
responding to the needs of the youth.
• AU member states must not neglect their responsibility to finance healthcare.

Governments should scrap or substantially minimise user fees to facilitate access to
affordable healthcare services. They should also combine direct expenditure with other
healthcare financing models by either funding healthcare administration, leaving specific
projects relating to the control of epidemic diseases to external donors, or financing health by
paying into health insurance schemes, instead of paying directly for medical services.
• The African Union and its member states should invest in popularising AU
instruments among the African citizenry. This should be a multi-stakeholder task shared
between the government, private sector, and the civil society (including the media). The
institutional framework for implementation should have a civic education component that
educates the public on the content and benefits of complying with the signed instruments. A
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best practice case is Kenya’s Anti-Corruption Police Unit - a body which investigates and
prosecutes corruption cases: The unit’s Department of Research, Information and Public
Education carries out research and awareness programmes on corruption (ACBF, 2007), hence
facilitating implementation of the AU Convention on Preventing and Combating Corruption.
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Introduction and Background
The African Union was established after two thirds of Africa’s governments signed the
Constitutive Act of the AU in July 2001. Formally launched in Durban, South Africa, in July
2002, the AU replaced the Organisation of African Unity (OAU). The Constitutive Act
commits African governments to further the values of African integration, democratic
governance, human rights and the participation of its citizens in the African Union. Indeed, it
asserts that the AU will be a union not just of governments, but peoples as well.
Since the Act, African governments have developed and acceded to several instruments in the
form of protocols, conventions, treaties and declarations. These instruments were developed to
accelerate the integration of African government policies and to foster good governance, the
respect for human rights and advance development at the national level. Collectively, these
instruments offer critical rights to citizens and responsibilities to governments, on the whole,
they offer a promise of a better life for all. Consequently, this study is anchored on the 1995,
Australian Human Rights Council (1995) report titled, The Rights Way to Development:
Human Rights Approach to Development Assistance. According to the authors, “[d]evelopment
exists within a human rights framework … Development should rightly be seen as an integral
part of human rights.” And so to anchor treaty formation as a stepping stone to development,
some civic and government consensus about its importance is heightened. Resultant from this
frame of reasoning, Brigitte Hamm (2001) argues that, “rights can be the consensual frame for
development policy because the moral commitment to human rights is universal.” To Hamm,
states have no difficulty in ratifying major treaties because at the core of them is the pursuit of
human rights. This therefore blends seamlessly with the “Accelerating the Ratification and
Domestication of African Union Treaties” project. However, although often argued that,
Human Rights and development are intertwined, the role of treaties as an enabler of
development and development being the expression and fulfilment of human freedom remains
murky to many. When the correlation between human rights, treaty ratification and
domestication are established, the removal of impediments to human security and personal
development such as poverty, discrimination, inequalities, absence of social services, lack of
economic opportunities, social exclusion, armed conflicts, large-scale violence and other forms
of physical insecurity is assured.
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Human Rights and basic freedoms guaranteed in treaty formation are channels for the
extermination of poverty and mainstream economic issues which breed governance
deficiencies, weak national institutional frameworks and instability. There is therefore a need
for a wider approach to, and interpretation of development that incorporates treaty ratification
and domestication. Slow or non-ratification and domestication of treaties can therefore not just
be overlooked as states’ oversight, but must be causal linked with weak national normative and
institutional framework, slow-paced development, widening inequality, high-levels of
unemployment and lowliness of income. Treaty ratification and domestication inter alia must
come through a democratic and participatory process following a bottom-up approach, rather
than from the linear process from the AUC to member states’ foreign affairs and justice or
constitutional affairs ministries and departments. In so doing, "A rights-based approach to
[treaty making and] development sets the achievement of human rights as an objective of
development" (Overseas Development Institute (ODI), 1999).
In conclusion therefore, while the goal of ratification is clear and more or less agreed upon, the
views of how, when and the process of domestication vary in detail and different states have
different experiences and nuances of doing so. These differences notwithstanding, suffice to
state that the following common traits extrapolated from Brigitte Hamm (2001) run across
treaties:
- Reference to or/and starting from human rights treaties;

- Non-discrimination, special focus on disadvantaged groups, explicitly women and
children;
- Participation and empowerment; and
- Good governance.
From the foregoing, the linkage between human rights, treaty ratification and development is
not so much a new concept as it has been around. However, a project such as this serves to
remind scholars and policy makers that rule of law is the harbinger of development. As such,
as long as treaty ratification and domestication remains slow and low, civic activism and policy
advocacy needs to remain engaged. This is even more so because, states commitment to the
SDGs and African states’ commitment to Agenda 2063 is near consensus. This report offers a
picturesque overview of the following six treaties and further dissects their domestication in
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Burkina Faso, Kenya, Mozambique, Sao Tome and Principe, Senegal, and Tunisia.
• The African Youth Charter
• African Charter on the Rights and Welfare of the Child
• African Charter on Human and People’s Rights in Africa
• African Charter on Democracy, Elections and Governance
• African Union Convention on Preventing and Combating Corruption
• Protocol to the African Charter on Human and People’s Rights on the Rights of
Women in Africa
These treaties are examined from the hypothetical view that, if fully implemented, have
tremendous promise for the lives of millions in Africa.
Against this backdrop therefore, this report is structured into four main chapters. The first
chapter foregrounds the quintessence of AU treaties and x-rays the contents of selected treaties
with the view of demonstrating what is in them which should appeal to any state or stakeholder
concerned about rights and the development of people’s and African states broadly. Following
this, chapter (bearing in mind that different countries have different approaches to treaty
making) looks into the treaty making processes and unearths key bottlenecks which projects
such as these need to be familiar with in the design of workplans on how to support states.
Chapter three looks at the status of ratification of AU treaties. The chapter primarily offers a
status report of which treaties the pilot countries have ratified before discussing the decision
making process which propels states to ratify certain treaties and not others. Last but not the
least, before offering a glossary of policy recommendations in chapter five, chapter four
examines the challenges and constraints which underlie treaty –making and reflects on how
such challenges permeate and slow the ratification and domestication of treaties. This chapter
is particularly important in grounding prospective areas for future project focus.
The purpose
Slow ratification and domestication of AU treaties impacts human development and negatively
affects national economic indicators. Ratification and a thoughtful commitment to
domestication breed good citizenship, harmony and peace which are cornerstones of good
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governance and development. As a consequence, slow ratification, domestication and
implementation are causally responsible for certain instances of poor governance and attitudes
which have weakened the capabilities of African citizens and civil society organisations to hold
their governments accountable for the decisions they take in multi-lateral spaces, particularly
the AU.
The three-year multi-country and regional UNDP’s “Accelerating the Ratification and
Domestication of AU Treaties” is designed to provide a focused and coherent capacity
development support to the AU OLC which is the principle organ tasked to oversee the
ratification of AU treaties. Based on their willingness to participate in this project, Burkina
Faso and Senegal (Western Africa), Kenya (East/Horn of Africa), Mozambique (Southern
Africa), Sao Tome e Principe (Central Africa) and Tunisia (Northern Africa), the UNDP works
with these countries and regional flag bearers to address the challenges and bottlenecks
associated with the slow pace of ratification and domestication of AU treaties.
So far, the “Accelerating the Ratification and Domestication of AU Treaties” project has
contributed to this policy gap by tracking the performance of African governments, raising
awareness on the value of AU treaties and supporting country-officers in engagements which
propel quicker domestication. This is in line with Article 4.1(b) of the Rules of Procedure of
the AU Assembly of Heads of States, which requires the Assembly “to monitor the
implementation of policies and decisions of the Union as well as ensure compliance by all
Member States.” The OLC and the UNDO urge compliance to AU treaties in recognition of the
tremendous opportunities they offer for eradicating poverty, promoting justice and realising
political, economic and social rights in Africa. The overall aim of monitoring is:
1. To assess and determine the level of compliance by AU member states on key

commitments;
2. To determine the effectiveness of mechanisms on implementation at the AU and country
levels;
3. To recommend specific measures to promote and encourage compliance and
implementation.
The impact
4
This report seeks to catalyse active citizenship, effective national governance and the
realisation of the fundamental freedoms and human rights contained in AU treaties. The report
encourages citizens to track the performance of governments and the AU against key
democratic governance, socio-economic; and civil and political rights enshrined in the AU
treaties broadly and in the selected treaties more specifically.
The AU Commission, Permanent Representatives Committee and relevant arms of national

governments are challenged to develop appropriate tools for the acceleration of ratification,
tracking of implementation and domesticating of AU treaties in the areas of democratic
governance, human rights, protection of minorities and elimination of all forms of
discrimination on racial, gender, ethnic or political reasons.
This report is therefore a pathway and an opportunity for national governments, civil society
organisations, development partners and the AU to dialogue on issues hindering the ratification
and domestication of AU treaties and states’ international obligations. It is expected that this
advocacy and activism would lead to increased citizenship participation in the affairs of the
African Union.
Rationale for countries’ selection
The six countries were selected on the basis of:

• Regional representation.
• Rights and accountability thresholds.
• Linguistic representation.
• Experience with compliance with other international treaties and protocols.
• Capability to be influencers in their respective sub-regions
Research Methodology
This synthesis report series is the first concerted effort towards a review and audit of continental
performance against 6 AU treaties. The study was undertaken over a four-month
period between July 2020 and November 2020. From July to September 2020, some 6
country consultants reviewed official and unofficial secondary documents and interviewed key
5
stakeholders for the 6 selected countries. For each country, a draft report on the country’s
experience with ratification of AU treaties and a policy brief was produced. These were
reviewed, provisionally validated and forms the basis of the analysis weaved into this report.
This report would further be reviewed and subjected to a validation workshop and critique
from those that participated in the study. The country reports were revised to incorporate
comments from the international consultants and UNDP country teams. In all 6 countries, a
senior consultant provided critically researched reports about their country-experienced with
AU treaties and indicated areas where the government could gain some support from. While
an analytical approach has been used, this report broadly unearths the benefits of ratifying and
domesticating AU treaties.
The research question that has been answered in this report is, ‘How can the ratification and
domestication of AU treaties be accelerated in selected countries and Africa broadly?
This study adopted a mixed methods research methodology, combining quantitative and
qualitative research designs concurrently for triangulation of findings. The research design for
this study was systematic analysis (Meta-analysis of secondary data). The quantitative
methodology, ensues from findings drawn from a survey done to appreciate the depth of
knowledge about AU treaties. The qualitative approach helped describe and explain, rather
than predict phenomenon. The approach enabled the team to gain a deeper understanding
through discovering meaning that may be difficult to convey quantitatively. Qualitative
techniques explain the “how” and “why” questions that support the discovery of new
information.
Qualitative and quantitative methodologies reinforce each other through their contemporary
interpretive and explanatory strengths. The qualitative and quantitative research paradigms also
complement each other. The triangulation of findings substantially helped to dispense of bias,
seek convergence of results and bring out contradictions and fresh perspectives on what is
expected of each stakeholder.
Data was analysed both qualitatively and quantitatively. Information is reported in terms of
frequencies and percentages and visualised through graphs and pie charts. The same
methodology was used for all chapters. Therefore the methodology used is not separately
presented in each chapter. Factors affecting ratification and domestication were teased out
6
using country experiences and recommendations synthesised to showcase broad areas of
consensus. The research also revealed that there is no reliable data on budgetary allocation,
amount of resources allocated to human resources, capacity building and other support to the
implementation of the AU treaties at national level. Such evidence probably explains the
sluggishness of some countries and their desire for support which few institutions are
habilitated to offer.
While the first chapter offers a synopsis of various treaties, there is interconnectedness between
treaties and development, freedom from discrimination and exclusion on the basis of class,
gender and age, and democracy and human rights. It is this interconnectedness which slow
ratification and domestication of AU treaties is being denied to millions of Africans.
Last but not the lease, suffice to state that, while all efforts have been made to ensure the
accuracy of the findings, a report of this nature is likely to include omissions, errors or
differences of perceptions from those held by the stakeholders it addresses. If the report
generates debate and the sharing of new information, it will have served its purpose.
From these findings, it will be possible to make some broader generalizable findings and
recommendations for African Union organs and member states during AU Summits. It is hoped
that it will stimulate dialogue and discussion as well as accelerate concerted efforts towards
monitoring and raising awareness both within governments, the African Union, development
partners and the wider general public.
7
Chapter 1
The Quintessence of selected AU treaties and their beatitudes
Since the formation of the OAU, African Governments committed to ratify, domesticate and
implement 42 Charters, Treaties, Protocols and Conventions. At least a third of these have been
developed after the African Union was established in 2001. Key among these are the African
charter on Human and People’ rights (1990), the Protocol to the African Charter on Human and
People’s on the Rights of Women in Africa (2003) and the African charter on the Rights and
Welfare of the Child (1990), the Convention on Preventing and Combating Corruption (2003),
the African Charter on Democracy, Elections and Governance (2007) and the African Charter
on the Values and Principles of Public Service and Administration (2011) among others.
This report summarizes six AU treaties agreed by our Heads of State at African Union level.
These treaties significantly raise the bar for most African governments in the areas of political,
social and economic rights and freedoms.
This chapter is designed to offer insights on the selected AU treaties as translated into rights
and commitments. The chapter also attempt answers to answer some of the critical questions
on the value of these protocols and the impact they can bring if implemented. Additionally it
is meant to guide those involved in empowering citizens to claim their rights and freedoms
based on the commitments espoused.
This chapter therefore provides a simple, straightforward and comprehensive information on the
selected instruments to support Africa citizen to understanding and be able to articulate these
rights and commitments. This resource can be used as a tool to monitor compliance of these
instruments at the national level.
This resource is for use by all professionals who are concerned with the African Union affairs. It
will be of particular use to policy and governance professionals, citizen activists and trainers on
issues of human rights and the design of treaty manuals and training materials.
1.1 The African Charter on Democracy, Elections and Governance (the Democracy
Charter)
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Context and Background
The African Charter on Democracy, Elections and Governance (the Democracy Charter) was
adopted on the 30th January 2007. This was during the 8th ordinary session of the Assembly
of the African Union (AU). It came into effect on the 15th February 2012. By April 2013, the
Charter has been signed by 41 countries out of which only 17 countries have so far ratified. The
Democracy Charter aspires to address issues of poor governance and unconstitutional changes
of government in Africa. It specifically deals with mismanagement of electoral processes,
human rights abuses, and inadequate participation of all citizens in their governance. It aims to
reinforce the commitment of the African states through the AU towards the universal values of:
democracy, respect for human rights, the rule of law, supremacy of the Constitution and
constitutional order, in the political arrangements of the AU member States.
The Issues
The principles of the Charter include: the promotion of democratic values and participatory
democracy, separation of powers, holding of regular, credible and transparent elections, gender
equality and a rejection of acts of corruption-related offences and impunity.
All African countries must uphold the supremacy of their constitution and promote a culture
of constitutionalism and the rule of law. They must inculcate a culture of popular participation
and protect fundamental freedoms, human security, human and people’s rights. They must also
eliminate all forms of discrimination and intolerance, so as to respect diverse governments.
African countries must establish, promote and consolidate a culture of democracy and peace.
This can be done by ensuring transparent and accountable public administration, strengthening
institutions of governance, promoting civic and voter education and ensuring multi-stakeholder
political and social dialogue.
African countries will establish effective institutions for democracy, in order to consolidate
civil control over the security forces. In this regard, governments must establish and capacitate
institutions that protect democracy, such as the Ombudsman, human rights commissions and
9
electoral commissions. The various institutions should cooperate at regional and continental
levels, through exchange of best practices in governance.
Following ratification and application of the charter, AU member states must submit a report
on measures taken towards domestication every two years. These consolidated reports will be
tabled by the AUC (African Union Commission) to the AU Assembly of Heads of State and
Government through the Executive Council. The Assembly must then take appropriate action
on the reports, as deemed fit by the Assembly and the Peace and Security Council.
The Rights
▪ All African citizens have a right to civilian rule and must not be subjected to
unconstitutional changes of government including a military coup, replacement of an elected
government by mercenaries or armed dissidents or rebels. Refusal by incumbent government
to relinquish power to a winning party following democratic, credible and transparent elections
and amendment of the constitution, infringes on the democratic change of government;
▪ Perpetrators of unconstitutional change of government are prohibited from participating
in elections meant to restore the democratic order, or hold any position of responsibility in
political institutions of their state;
▪ All women are entitled to the necessary conditions, including encouragement, for their
full and active participation in the decision-making structures, and processes at all levels;
▪ All Africans are entitled to the necessary conditions that promote citizen participation
including access to information, freedom of the press and accountability of public institutions;
▪ All Africans are entitled to regular, credible and transparent elections as defined in the
AU’s Declaration on the Principles Governing Democratic Elections in Africa;
▪ All Africans must have access to an independent and impartial national electoral body,
which ensures fair and equitable access to public resources by parties and candidates contesting
elections;
▪ All Africans must have access to credible national mechanisms for constructive
management of electoral disputes, and an enforceable and binding code of conduct for all
electoral stakeholders;
▪ No African must be subjected to any form of discrimination or intolerance based on
ethnicity, culture, political opinion, gender, race or religion;
10
▪ All Africans have a right to an independent judiciary along with a functional and
effective parliament;
▪ All Africans have a right to equality before the law, and equal protection of the law as a
fundamental pre- condition for a just and democratic society;
▪ The rights of women, ethnic minorities, migrants, people with disabilities, refugees,
displaced persons and other marginalised or social groups, will be protected by the appropriate
national legislature and administrative measures;
▪ All men and women are entitled to equal and effective participation in all forms of
political involvement as well as economic and social governance;
▪ Civil society organisations are entitled to a favourable environment that enables them to
exist, and operate within the law;
▪ Contesting parties and candidates to elections must have fair and equitable access to state
controlled media during elections;
▪ All Africans are entitled to an independent observer mission for all elections, which shall
observe the process prior to, during and after the electoral process. The independent observer
should state whether the conditions prior were conducive for holding elections and ascertain the
freeness and fairness of the electoral process;
▪ All Africans and particularly youth and people with disability, are entitled to systematic
and comprehensive civic education and other measures to promote their full participation in
democracy and development processes.
1.2 The African Convention on Preventing and Combating Corruption
In 2003 the African Union (AU) adopted the African Convention on Preventing and Combating
Corruption and it subsequently came into force on 5th August 2006. As of April 2013, 34
countries have ratified it. The convention focuses on the promotion of accountability and
transparency in the management of public affairs and creating conditions that support socio-
economic development. The convention aims to promote and strengthen mechanisms required
to prevent, detect, punish and eradicate corruption and related offences in the public and private
sector. It was intended to take the high incidences of corruption, malfeasance and abuse of public
offices in Africa.
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The Issues
The convention seeks to promote, facilitate and regulate co-operation amongst African
governments in ensuring the effectiveness of initiatives targeting the prevention, detection,
punishment and eradication of corruption and related offences. The purpose is to ensure that
African peoples can fully enjoy economic, social and cultural rights as well as civil and political
rights, by fostering transparency and accountability in the management of public affairs.
The convention promotes respect for democratic principles and institutions while supporting
popular participation, rule of law, good governance and a respect for human and peoples’ rights.
Through this convention African’s governments condemn and reject all acts of corruption,
related offences and impunity in a bid to achieve social justice and ensure balanced socio-
economic development. The convention also prescribes legislative and other measures to
ensure clarity on corruption and enforce appropriate redemptive and prohibitive measures. It
further targets laundering of the proceeds of corruption and illicit enrichment.
The convention promotes various levels of co-operation in order to eradicate corruption at

national and international levels. It further outlines the roles of civil society and the media in
fighting corruption. It also provides for the confiscation and seizure of the proceeds and any
instrumentality of corruption and widens the jurisdiction for states in instances of corruption.
An Advisory Board on Corruption is established within the AU, as the mechanism to promote
and encourage adoption and application of anti-corruption measures on the continent.
The Rights
• African countries will develop legislative and other measures at national and
international level to eradicate corruption including establishing national anti-corruption
authorities or agencies;
• Governments will protect informants and ensure that citizens can report instances of
corruption without fear of consequent reprisals;
• African states will strengthen mechanisms for promoting the education of Africans to
respect the public good and public interest. It will in addition, raise awareness in the fight
against corruption including through educational programmes and sensitisation of the media;
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• African states will develop legislative measures to criminalise the conversion, transfer
and disposal of property that is the proceeds of corruption or related offences. These measures
will also criminalise the disguise or concealment of the true nature, source, location,
disposition, movement or ownership of or rights with respect to property acquired through
proceeds of corruption.;
• All governments will ensure that public officials declare their assets when they assume
office and after they leave office. They will also develop disciplinary measures and investigative
procedures to root out corruption;
• African governments must develop laws to establish the offence of illicit enrichment;
• All African states shall ensure the development of laws to guarantee access to
information, to assist in the fight against corruption;
• African governments will adopt laws to prescribe the use of funds by political parties in
a transparent and accountable manner;
• African states will develop laws, mechanisms and other measures to fight corruption in
the private sector including companies paying bribes to win tenders, while encouraging the
private sector to assist in the fight against corruption;
• Governments will create an enabling environment for civil society and the media to
proactively participate in eradicating corruption. It will particularly give access to information,
provided that such access does not adversely affect the investigation process;
• African governments will cooperate in the extradition of corruption offenders;
• Every person deemed to have committed the crime of corruption will be entitled to a fair
trial as prescribed in the African Charter on Human and Peoples’ Rights;
• Every African state shall develop laws that enable competent authorities to confiscate
and seize proceeds and any instrumentality of corruption and ensure the repatriation of
proceeds of corruption;
• African governments will cooperate in the national and international level to ensure that
corruption and related offences are addressed adequately, from investigation to repatriation of
proceeds of corruption.
1.3 The African Charter on Human and Peoples’ Rights (Also known as the Banjul
Charter)
13
The Organization of African Unity adopted the African Charter on Human and Peoples’ Rights
(Also known as the Banjul Charter) in 1981 and it was enforced on 21st October 1986. Thus
21st October is the African Human Rights day. As of April 2013, all Member States of the
African Union (AU) have ratified the Charter, except the newly established state of South
Sudan. The Banjul Charter covers both civil and political rights as well as economic, social
and cultural rights. The charter, furthermore, includes rights not only for individuals but also
for a people. In addition, it imposes duties that are unique in international human rights
instruments. The instrument is strongly African, aiming to further African values and build on
the virtues of African historical traditions, while alleviating human rights violations. The
charter is an international legal instrument, intended to promote and protect human rights and
basic freedoms in Africa.
The Issues
The charter recognises universally accepted civil and political rights, including the rights to
non-discrimination, equality, life and personal integrity. The Charter also recognises freedoms
of religion, information and expression, association and assembly, movement, political
participation, freedom from slavery, cruel, inhuman and degrading treatment. The Charter
further recognises certain economic, social and cultural rights, and overall, is considered to
place significant emphasis on these rights.
The organ charged with the mandate to promote and protect human rights is the African
Commission on Human and Peoples’ Rights (ACMPR). It has the functions of promoting and
protecting the human and peoples’ rights, and interpreting the provisions of the charter and any
other task assigned to it by the Assembly. The Commission consists of eleven members chosen
from amongst African personalities of the highest reputation. The potential members are
known for their high morality, integrity, impartiality and competence in matters of human and
peoples’ rights. Particular consideration is given to persons having legal experience.
The commission is mandated to collect documents, undertake studies and research on African
challenges in the field of human and peoples’ rights. The ACMPR is also required to
disseminate information, encourage national and local institutions concerned with human and
peoples’ rights, and give its view or make recommendations to governments where necessary.
14
The commission was established in 1987 in Banjul, Gambia. A protocol to the charter was
subsequently adopted in 1998, whereby an African Court on Human and Peoples’ Rights was
to be created. The protocol came into effect on 25th January 2005.
The Rights
• All Africans have a right to freedom from exploitation and degradation particularly
through: slavery, slave trade, torture, and cruel, inhuman or degrading punishment and
treatment;
• All Africans have a right to participate freely in the government of their country, either
directly or through freely chosen representatives, in accordance with the provisions of the law;
• All Africans are equal before the law and shall enjoy equal protection of the law;
• All Africans have the right to non-discrimination, equality, life and personal integrity,
liberty and security of person. They have the right: to fair trial, to receive, express and
disseminate information and opinions, to property and to education;
• All Africans have the right to freedom of: conscience, profession and free practice of
religion, association, assembly, expression, political participation and movement;
• All people have a right to economic, social and cultural development, and a right to
national and international peace;
• All African people are equal and may freely dispose of their wealth and natural
resources. They also have the right to a general satisfactory environment favourable to their
development;
• All Africans have a duty to exercise their individual’s rights and freedoms with due
regard to the rights of others. They have the right to: collective security, moral and common
interest and to serve their national community, by placing their physical and intellectual
abilities at its service;
• All Africans have the right to equal access to the public service of their country.
Additionally, they have the right to public property and services in strict equality, of all persons
before the law;
• All Africans also have a duty towards the family and state security; to pay taxes, and to
promote the achievement of African unity.
The commitments
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• African governments will care for the physical and moral health of the family and ensure
the protection of the rights of women, children and the disabled;
• African governments will eliminate all forms of foreign exploitation. It will assist all
peoples in their liberation struggle against foreign domination in political, economic or cultural
context;
• African governments have an obligation to protect and assist the family;
• African governments shall promote and ensure the popularisation of the Banjul Charter
through teaching, education and publication.
1.4 The Protocol to the African Charter on Human Rights and Peoples’ Rights on the
Rights of Women in Africa
The Protocol on the Rights of Women, also called the Maputo Protocol, seeks to broaden the
human rights spelt out in the Banjul Charter to address rights specific to women. Article 2 calls
upon member states to include in their laws and constitutions clauses on the principles of
equality between men and women. Article 3 guarantees the right of women to dignity and calls
for prohibition of all forms of exploitation and degradation against women. Article 4 covers the
right to life, integrity and security, and calls for laws punishing acts of violence against women
and policies promoting peace education. It also calls for laws and policies eradicating cultural
beliefs, practices and stereotypes that perpetuate the tolerance of acts of violence against
women; to set up institutions that support victims of violence; to pass laws that allow
prosecution and punishment of women traffickers and ban experiments on women without their
consent.
Article 5 calls for the abolition of harmful practices, prohibits female genital mutilation, human
sacrifice, medicalization and para-medicalization of females. Article 6 calls for equal rights in
marriage, prohibition of forced marriage; sets a minimum age of marriage at 18; provides for
equal rights to nationality and children in marriage; and rights for married women to acquire
and own property. Rights on divorce are spelt out in Article 7, which calls for the right to access
judicial services, and equal representation of women in the judiciary and law enforcement
16
agencies.
Article 9 calls upon member states to ensure equal participation of women in leadership and
governance and Article 10 calls for their increased participation in peace processes. Article 12
calls for the elimination of all forms of discrimination in all spheres of education and the
elimination of all forms of stereotypes in textbooks, syllabi and the media; to protect women
from sexual harassment in educational institutions and provide institutional support to victims
of sexual harassment.
Equal opportunity in employment, remuneration, choice of occupations, participation in

business and special protection for women are covered in Article 13. Article 14 calls for the
protection of the sexual and reproductive rights of women, while Article 15 commits state
parties to ensure women have the right to nutritious and adequate food, while equal rights to
housing and acceptable living conditions are covered by Article 16 and women’s cultural rights
by Article 17.
The right to a healthy environment is enshrined in Article 18, and the right to fully enjoy
sustainable development in Article 19. Rights of guardianship to children after the death of a
spouse and equal rights of inheritance are covered by Articles 20 and 21. Article 22 calls upon
state parties to protect elderly women and ensure they are free from violence. Article 23
provides for protection of women with disabilities. Article 24 calls for protection of poor
women and treatment of pregnant or nursing women in detention or other forms of custody.
Implementation of the Maputo Protocol is examined in terms of civil and political rights
(Articles 2 to 12), and economic, social and cultural rights. In the next sections, the report
presents measures taken by various countries to implement the protocol. Progress will be
analysed based on indicators such as laws, policies and institutions established to protect the
rights of women, degree of gender-based discrimination, freedom from violence and harmful
cultural practices, rights to education and training opportunities, and the representation of
women in public offices and their level of participation in the political process in each country.
The Issues
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The protocol guarantees comprehensive rights to women including the right to: engage in the
political process, social and political equality with men, control of their reproductive health,
and the end of harmful practices against women including female genital mutilation.
The protocol promotes the principles of equality, peace, freedom, dignity, justice, solidarity
and democracy and aims to give greater attention to the plight of women in Africa. Through
the recognition of a wide spectrum of women’s civil and political rights, as well as economic,
social and cultural rights, it reaffirms the universality, indivisibility and interdependency of all
internationally recognized human rights of women. These include the right to life, integrity,
security, elimination of all harmful practices, access to justice and equal protection before the
law.
The protocol also specifically targets the elimination of all forms of discrimination and harmful
practices against women. The Protocol defines what constitutes discrimination and violence
against women. It proceeds to outline measures which governments are required to take in both
the public and private spheres to put to an end to such practices. The Protocol prescribes
legislative, institutional and other measures to be adopted by governments in order to eliminate
all forms of discrimination against women.
The Maputo protocol calls for the adoption and implementation of measures to prohibit
exploitation or degradation of women, and protect women from all forms of violence whether
sexual or verbal, whether in public or in private. The protocol specifically requires governments
to prohibit and condemn practices such as “female genital mutilation, scarification,
medicalising and para-medicalising of female genital mutilation.” It further requires that
member states take measures to ensure that women and men enjoy equal rights and are regarded
as equal partners in marriage, including outlawing marriages that take place without the free
and full consent of both parties. The minimum age of marriage for women is set at 18 years of
age. The Protocol also encourages monogamy as the preferred form of marriage.
By ensuring that governments submit periodic reports, the protocol mandates both the African
Commission and the African Court, to elaborate on how the rights are recognized and ensure
their enforceability. African governments are also called upon to review and amend criminal
laws and procedures to eliminate discrimination against women and ratify all other regional
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and international human rights instruments essential for the effective protection of women’s
human rights in Africa
The Rights
• Women are entitled to participate in all elections without discrimination, and enjoy
effective representation and participation at all decision-making levels;
• Women are entitled to respect as a person, and to the full development of a her
personality;
• All women have a right to peace and must be protected in armed conflict;
• All women must have access to justice and equal protection before the law;
• African women are entitled to dignity, life, integrity and security and will be protected
from all forms of exploitation or degradation;
• African women are protected from all forms of violence including sexual abuse and
discrimination;
• No African women will be discriminated against and governments will adopt legal and
regulatory measures at all levels, to ensure that there are no discriminatory practices based on
gender;
• All women have the right to education, training and information to ensure their effective
and equal participation in their development and that of their communities and countries;
• All women will be protected from harmful traditional practices;
• African women have the right to health and reproductive rights of women;
• Women in Africa are entitled to food security, adequate housing and a healthy and
sustainable environment;
• African women are entitled to inheritance and a positive cultural context;
• African women have the right to decide whether to have children, the number of children
to have and the spacing of the children;
• African women are entitled to control their fertility and have a right to choose any safe
method of contraception, and have the right to have family planning education;
• All women have the right to sustainable development, to economic and social welfare
rights;
• All women and men have equal rights in a marriage and women are entitled to acquire
their own property and to administer and manage it freely;
• All women and men are entitled to equal rights in the case of separation, divorce or
19
annulment of marriage including reciprocal rights and responsibilities towards their children
and equitable sharing of joint property;
• Women have the right to protection against sexually transmitted infections including
HIV/AIDS and the right to be informed of their health status and that of their partner;
• Widows are protected from inhuman, humiliating or degrading treatment and shall
automatically become guardians and custodians of their children after the death of their
husband unless it is not in the “best interest” of the children;
• A widow has the right to remarry a person of her own choice
• Elderly women are protected from discrimination based on their age;
• Disabled women are protected from discrimination based on their disability;
• Governments must prevent and condemn trafficking of women while prosecuting the
perpetrators of such acts and must prohibit medical or scientific experiments on women without
their informed consent.
1.5 The African Youth Charter
The African Youth Charter was adopted by the African Union (AU) in 2006 and came into
force on 8th August 2009. As of April 2013, 41 countries have signed the Charter out of which
only 31 have ratified. The Charter was to address the growing need of youth empowerment,
development and their participation in Africa’s development. Youth constitute over 60% of
Africa’s population but their participation and empowerment is not guaranteed. The objective
of the Youth Charter is to provide governments, youth, civil society and international
organisations with a continental framework, which underlines the rights, duties and freedoms
of youth in Africa. It also provides the parameters for development of national programmes
and strategic plans geared toward youth empowerment. The African Youth Charter, on the other
hand, defines youth as people between the age of 15 and 35 years. It provides for non-
discrimination, freedom of movement, expression, thought, association, conscience, religion
and privacy. It provides for the right to marriage, ownership of property, participation in all
spheres of society and calls upon member states to develop national youth policies. It also
provides for the right to education and skills development, the integration of youth in
development activities and their empowerment and the right to healthcare. These charters focus
20
mainly on civil, political, economic and social rights.
The Issues
The Charter defines youth as any individual between the ages of 15-35 years. The African
Youth Charter covers prominent issues affecting youth in the areas of employment, sustainable
livelihood, education and skills development, health, youth participation, national youth
policies, peace and security, law enforcement, youth in the Diaspora and youth with disabilities.
The Charter addresses these issues as part of the framework for youth empowerment, rights
and responsibilities.
It further calls on African governments to ensure the freedom of movement, expression, private
life and property for young people. It calls on the establishment of structures for youth
participation and particularly national youth coordinating mechanisms established within the
framework of national youth policies as a means of mainstreaming youth issues in development
of policies and programmes.
The AUC is commissioned to collaborate with governmental, non-governmental institutions

and developmental partners, so as to identify the best practices on youth policy formulation
and implementation. In addition, the AUC should encourage the adaptation of principles and
experiences among member states. In addition, African states should be invited to include
youth representatives as part of their delegations, to the ordinary sessions of the African Union
and other relevant meetings of the policy organs. This will broaden the channels of
communication and enhance the discussion of youth-related issues.
Finally the Charter outlines the responsibilities of youth to their own development, that of their
countries and the continent at large. In order to effectively implement the Charter, the youth
are expected to develop and promote the required self- discipline, patriotism, volunteerism,
environmental conservation and cultural development among other values.
The Rights
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• Every youth will enjoy the freedom of: movement, expression, association, thought,
conscience and religion. Their private life, family and property will be protected;
• Every young person will have the right to social, economic, political and cultural
development, with emphasis on the media promoting this development;
• No African youth will be discriminated on grounds of race, ethnic group, colour, sex,
language, religion, political or other opinion, national and social origin, fortune, birth or other
status;
• Every young person has the right to education of good quality. The multiple forms of
education including formal, informal, non-formal, distance learning and lifelong education
shall be embraced in order to meet the diverse needs of young people, including free and
compulsory basic education;
• Youth have the right to leisure and rest, and to engage in play and recreational activities
that are part of a healthy lifestyle.
The Commitments
• African states will provide for the right of young people to a standard of living, for their
holistic development. Training in agriculture, mining, commercial and industrial production,
and access to grants and support to facilitate access to financing for socio-economic
development;
• African governments will guarantee the participation of youth in parliament and other
national decision-making bodies, as well as facilitate the establishment or strengthening of
national, regional and continental platforms for youth participation;
• Governments, civil society, youth and development partners must ensure the equal
access of young women and young men to participate in decision-making, and their fulfilment
of civic duties;
• African governments will develop cross-sectoral policies and programmes, which take
into consideration the inter- relatedness of the needs of youth, with the view of integrating and
mainstreaming the perspectives of youth into decision-making and development processes;
• African governments will develop a comprehensive national youth policy after extensive
consultation with youth, and will include the establishment or reform of a national youth
coordinating mechanism, to conform to the Charter;
22
• States will develop legislative measures that eliminate all forms of discrimination
against girls and young women, and ensure their human rights and fundamental freedoms. The
states will also ensure that they are able to participate actively, equally and effectively with
boys and young men at all levels of social, educational, economic, political, cultural, civic life
and leadership, as well as scientific endeavours;
• African governments will ensure the availability of accurate data on youth employment,
unemployment and underemployment, so as to facilitate the prioritisation of the issue in
national development programmes. In addition, they will promote youth entrepreneurship by
including entrepreneurship training in the school curricula, providing access to credit, business
development skills training, mentorship opportunities and better information on market
opportunities;
• African governments will make available equitable and ready access to medical
assistance and health care especially in rural and poor urban areas, with an emphasis on the
development of primary health care and institute comprehensive programmes. As a result,
enable the prevention of the transmission of sexually transmitted infections and HIV/AIDS by
providing education, information, communication and awareness creation as well as making
protective measures and reproductive health services available;
• Governments, civil society, youth and development partners will establish structures and
networks that encourage and assist the youth in the Diaspora, to return to and fully re-integrate
into the social and economic life in Africa. Moreover, they will promote and protect the rights
of young people living in the Diaspora;
• Governments will recognise the right of the mentally and physically challenged youth
to special care, and ensure equal and effective access to education, training, health care
services, employment, sport, physical education and cultural and recreational activities;
• Governments have a duty to popularise the Charter and its entitlements.
1.6 The African Charter on the Rights and Welfare of the Child (ACRWC)
The African Charter on the Rights and Welfare of the Child (ACRWC) also known as the
Children’s Charter, was adopted by the Heads of State of the then, OAU in 1990. It came in
force on 29th November 1999. As of April 2013, 47 African countries have ratified the Charter.
The Children’s Charter lays out the responsibilities of: the state, the family, the community and
23
the individual, in the protection and promotion of the rights of the child. It is rooted in other
human rights treaties, including the African Charter on Human and Peoples’ Rights (ACHPR).
The Children’s Charter originated from member states believing that the United Nations
Convection on the Rights of the Child (UN-CRC) missed important socio-cultural and
economic realities particular to Africa. It emphasises the need to include African cultural values
and experiences, when dealing with the rights of the child. The Charter defines a child as person
below the age of 18 years. The charter provides for children to enjoy rights and freedoms
without discrimination and guarantees all children the right to life, nationality, education,
privacy, health, leisure, recreation and culture. It guarantees the children’s freedom of speech,
expression, association, thought, conscience and religion, and contains special provisions
requiring measures to be taken by member states to protect physically and mentally
handicapped children. This charter also requires state parties to protect children against child
labour, child abuse and torture; and for juvenile offenders, it requires special measures to be
taken in the administration of justice.
The Issues
The ACRWC defines a “child” as a human being below the age of 18 years. It calls for the
child’s protection from abuse and bad treatment, negative social and cultural practices and all
forms of exploitation and sexual abuse, including: commercial sexual exploitation and illegal
drug use. It aims to prevent the sale and trafficking of children, kidnapping, and use of children
as beggars.
The charter acknowledges that children are entitled to the enjoyment of freedom of: expression,
association, peaceful assembly, thought, religion, and conscience. It seeks to protect the private
life of the child, and safeguard against all forms of economic exploitation and hazardous work.
Such things interfere with the child’s education; and can compromise his or her health or
physical, social, mental, spiritual, and moral development.
The Children’s Charter has stronger and clearer reference than the CRC, to harmful traditional
practices. It also has enhanced protection for: children with disabilities, children living in prison
with their mothers, girls who become pregnant and internally displaced children. The principles
guiding implementation of these rights include: non-discrimination, the best interest, life,
24
survival and development of the child, his or her participation while providing for the child’s
responsibilities to the society, the state and the international community.
The Charter creates the African Committee of Experts on the Rights and Welfare of the Child
(Committee of Experts) whose mission is to promote and protect the rights established by the
ACRWC. The Committee of Experts is mandated to practice applying these rights, and
interpret the disposition of the ACRWC, as required of party states, AU institutions, or all other
institutions recognised by the AU or by a member state.
The Rights
• Customs, traditions, cultures or religions that are inconsistent with the provisions of the
Children’s Charter, must be discouraged;
• Every child is protected against harmful social and cultural practices including child
marriages, betrothals and discriminatory practices based on sex or other status;
• Every child is entitled to the best attainable state of physical, mental and spiritual health;
• Every child has a right to freedom of expression, freedom of: association, thought,
conscience and religion, and protection of privacy;
• The “best interests of the child” must be the primary consideration in all action
concerning children, even in cases of adoption and separation of parents;
• Children shall not be discriminated against on the grounds of their own or their parent’s:
race, ethnic group, colour, sex, language, relation, political or other opinion, national or social
origin, fortune, birth or other status;
• Every Child has the right to life and shall not be subjected to death sentence for any
crimes committed;
• Children must not be recruited in armed conflict or conscripted into the armed forces;
• Every child is entitled to a name and nationality from birth and a birth registration;
• Every child has the right to rest and leisure, to engage in play and recreational activities
and to fully participate in cultural and artistic life;
• Children must not be used in any form of child labour or begging and are protected from
child abuse and torture;
• Every child is entitled to parental care and protection, and no child shall be deprived of
maintenance due to their parent’s marital status;
25
• Parents and Children have a responsibility towards family and society, to work for the
cohesion of the family, to respect parents, superiors and elders and to preserve African cultural
values as this can promote their overall development;
• All children including gifted and disadvantaged children have a right to education
starting with free and compulsory basic education;
• Children are entitled to juvenile justice and shall not be subjected to torture, inhuman or
degrading treatment. They shall be separated from adults while in detention or imprisonment;
• Girls have the right to return to school after pregnancy while states must promote
affirmative action for girls’ education, to ensure greater enrolment of girls;
• Handicapped children are entitled to special measures of protection in keeping with their
physical and moral needs;
• Refugee children including internally displaced children are entitled to appropriate
measures for their protection and well-being;
• Every child has a right to protection from drug abuse, abduction and child trafficking;
• No child shall be induced, coerced or encouraged to engage in any sexual activity,
prostitution or pornographic activities;
• The state will ensure the protection of imprisoned expectant mothers, and mothers of
infants and young children.
Chapter 2
26
Treaty-making: The Ratification and Domestication Process
Majority of the laws and regulations that govern the right to initiate treaties, the process of
formation, interpretation, amendment and dissolution are laid down in the 1969 Vienna
Convention on the Law of Treaties (VCLT)1. Broadly defined, a treaty is “an international
agreement concluded between states in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments and whatever
its particular designation2.” The rules relating to treaties in the 1969 VCLT are delimited to
agreements between and among state parties. However, given the accelerating process of
globalisation and the evolving nature of international space, systems and its dynamics,
agreements between states and international organisations have also gained force in this age of
treaties. This later form of treaties is governed by the 1986 Vienna Convention on the Law of
Treaties Between States and International Organizations or Between International
Organizations. The principal rules and some provisions of the Vienna Conventions are widely
recognised to embody customary international law and state practice regarding treaties.
The emergence and evolution of treaties encompass distinct processes and cover variety of
aspects. There are, as such, several dimensions to treaty making and inquiries around treaty
formulation play an increasingly critical role in the development of international law which is
guided by regional and states’ realities, with the projected aim and directives for holistic
implementation at national levels. Not only do treaties serve as sources of international law,
underpin the international legal system and shape international affairs, they also canalize the
concept of ratification or expression of consent to be bound by states and the agreements they
make. Primordially, states have signed treaties on a wide variety of issues, and overtime,
treaties have fundamentally become an important part of the sovereignty of states as well as a
significant bedrock of states’ rapports with other nations. In accordance with the purpose or
context of establishment, treaties are either bilateral or multilateral, and both forms are
commonly viewed as frameworks of legal instruments that underlie international law. Beside
treaties providing the basis for renewed and improved relationships and a progressively safe
atmosphere that promotes social stability and development, benefits also accrue from them to
1 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, available at:
https://www.refworld.org/docid/3ae6b3a10.html [accessed 28 August 2020]
2 Article 2(1)(a) of the Vienna Convention on the Law of Treaties of 1969 (hereinafter referred to as VCLT / the Vienna Convention).
27
the state parties3 who not only ratify but take measures to domesticate and effectively
implement the treaties nationally. However, the processes by which states ratify or express
their commitment to be bound by treaties are often divergent and contingent on the history as
well as context of the respective state’s legislative, legal and political circumstances.
Noting that treaties are formally and legitimately binding contracts of obligations on state
parties to them under international law, it is thus necessary to understand the processes and
benefits of treaty making, ratification, and domestication. Also, while the process of treaty
formulation or international law-making is, generally, by no means as systematic and
bureaucratized as the national ones, it is nevertheless possible to discern some procedural steps,
at least for analytical reasons.
2.1 Treaty Making and Formation
International consensus on the making and conclusion of treaties are typically driven by
complex international and national challenges that states and societies face in managing the
global economy, fostering sustainable development and economic growth, minimising climate
change, preserving human rights and strengthening human security4. These realities which
underlie the start of a treaty making process precede formal proposals by member states
representatives or non-governmental organisations to the international community, often,
passing through an intergovernmental or international organisation.5 However, contemplating
the establishment of a treaty entails taking into account several factors, like whether the
apparent decision about the need, foreseen benefits, and chances of realising the proposed
international instrument ‘justifies the commitment of the resources expected to be required to
formulate, adopt, and bring the instrument into force”6. Put forward, the making of
international or multilateral treaties between regional states or states worldwide remains an
undertaking that involves four major phases, including negotiations; adoption and
authentication; expression of consent to be bound or ratification; and entry into force.
Guidelines for these processes are outlined in the VCLT Part II—Sections 1, 2 & 3 (Articles 2
3 Article 2(1) (g) of the VCLT, defines the term ‘party’ to mean “a State which has consented to be bound by the treaty and for which the
treaty is in force.”
4 Nakhjavanii, Salim A (2010). Rules for our country, rules for our world: Prospects for enhancing Parliamentary oversight of treaty-making
and implementation in South Africa. A briefing paper prepared at the request of the Portfolio Committee on International Relations and
Cooperation
5 Weiss, Edith Brown (editor). (1992). Environmental change and international law: New challenges and dimensions. United Nations
University Press: Tokyo, Japan.

6 Ibid
28
t0 25) on ‘Conclusion and Entry into force of Treaties’. The successful realisation of the phases
also signifies the completion of the process by which a treaty becomes binding under
international law7. Notably, establishing a treaty is in the main considered an executive-led
operation, and the international negotiation procedures as well as the expression by states of
consent to be bound by a treaty are all part of the conduct of international relations and policy8.
2.1.1. Treaty Negotiation
The making and conclusion of multilateral treaties are intricate as the discussions and
negotiations requires the participation of several parties. While baseline studies are conducted
from the outset of the treaty initiating process, the drafting which involves documenting the
provisional terms of an agreement, spans through the negotiations9. The introduction and
negotiations of multilateral treaties are usually done behind closed doors and by way of
diplomatic or intergovernmental conferences, with ‘representatives accredited by States’ and
conferred the ‘full powers’10 to represent the interest of the state in high-level negotiation of
treaty making and conclusion. Clearly defined, full powers is “a document emanating from the
competent authority of a State designating a person or persons to represent the State for
negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the
State to be bound by a treaty, or for accomplishing any other act with respect to a treaty”11.
However, ‘Heads of State, Heads of Government and Ministers for Foreign Affairs’, do not
require full powers, as representing their states in the process of treaty formation and
conclusion is considered a function of their office.12
The process of negotiating the establishment of multilateral treaties can be quite complex,
fragmented and involving drawn-out debates in large assemblies or conferences, because most
parties desire to express their opinions in defining its final terms. In the case of the
establishment of the African Union, for example, a total of fifty three Heads of State and
Government of the Member States of the Organization of African Unity13 participated in the
two years negotiations starting in the year 2000 and leading to the official launch of the AU in
July 2002. Beside the lengthy negotiations, state representatives routinely maintain contact and
7 Nakhjavanii, Salim A (2010), op.cit

8 Committee of Legal Advisers on Public International Law (CAHDI). (2001). Expression of Consent by States to be Bound by a Treaty:
Analytical Report and Country Reports. Secretariat memorandum Prepared by the Directorate General of Legal Affairs – CAHDI.
9 Weiss, Edith Brown (1992), op.cit
10 See: Article 7 of the VCLT on ‘Full Powers’
11 Article 2(1)(c) of the VCLT
12 Article 7(2)(a) of the VCLT
13 See: Constitutive Act of the African Union of 11th July 2000
29
consultation with their respective governments for advice where appropriate and conclude with
signatures on the final text of treaty without reservation following informed directives or
guidance from their states14. In the case of the African Union treaties, therefore, endorsement
of the treaties must be obtained by states at the national level, and treaty becomes legally
binding on the state concerned only after it has been ratified, adopted or approved within the
context of national law. Generally, and during treaty negotiations and deliberations, provisional
terms of the contract are also drafted, and states representatives review them severally and
make proposal for changes to the wording of the tentative text document.15 A resolution by the
negotiating state parties on the final term of the text usually precedes the adoption and
authentication process.
2.1.2. Adoption and Authentication of the Treaty Texts
Rules on the adoption and authentication of texts are provisioned in the Vienna Convention.
Adoption constitutes a formal act which establishes the form and content of a proposed treaty
text, of which its adoption generally occurs through the negotiating states’ expression of
consent in the process of treaty making16 or when an agreement is reached on the language of
the final text17. Speaking to the participation of all negotiating states in international treaty
process, it can be said that the process encourages equality. Treaties negotiated and formed
within an intergovernmental or international conference can, as a rule of law, be adopted by a
two-thirds vote of the state parties present and voting18. However, same majority can through
a consensus decide to apply a different rule for the form of adoption.
The standard practice which follows the adoption of a treaty text is authentication. This process
is quite important and involves all states representatives validating the wordings or language
of the treaty text. Accordingly, a “the text of a treaty is established as authentic and definitive
by such procedure as may be provided for in the text or agreed upon by the States participating
in its drawing up”19. Authenticating or validating a treaty text can be accomplished through
any specific process agreed to by the states’ parties. However, in the absence of such an agreed
procedure for authentication by the negotiating states, then the treaty practically will be
14 I.A.Sheirer (1994). Starke’s International Law. 11th edition, London: Butterworths.

15 Stanford Law School & American University of Iraq (2016). Public International Law: Treaties and International Organizations Pub.
Available at: https://law.stanford.edu/wp-content/uploads/2018/04/ILEI-Treaties-and-Intl-Orgs-2016.pdf
16 See: Article 9(1) of the VCLT
17 Committee of Legal Advisers on Public International Law (CAHDI). (2001), op.cit
18 Article 9(2) of the VCLT
19 Ibid, Article 10(a)
30
authenticated by “signature, signature ad referendum20 or the initialling by the representatives
of those states of the treaty text or of the Final Act of a conference which incorporates the
text”21. The adoption and authentication of the texts of a treaty entails the treaty negotiation
process was a success. Meanwhile, once the authentication of the text is done, states cannot
independently revise its terms, but can express consent to be bound by the treaty.
2.1.3. Expression of Consent to Be Bound
To be party to a treaty, states must bound themselves by expressing consent through one of the
following forms which are by signature, exchange of instruments constituting a treaty,
ratification, acceptance, approval or accession”22. Instances where signatures are viewed as the
conclusive expression of consent by states to be bound are stipulated in Article 12 of the Vienna
Convention. However, in certain instances, the treaty remains non-binding until the state
parties concerned proceed to the process of ratification. In other words, signature maybe
subject to ratification, acceptance or approval23 before the treaty is considered a binding
contract of obligations. This notwithstanding, the mere signing of a treaty texts obliges state
not to defeat the object and purpose of the treaty, until such time as it makes clear its intention
not to become party to the treaty.24
Beyond signature as a consensus to be bound, is also expression by ratification which in

international law perspective, as in the Vienna Convention of 1969 provides that “ratification,
acceptance, approval and accession mean in each case the international act so named whereby
a state establishes on the international plane its consent to be bound by a treaty” 25. Article 14
of this Convention governs consent by ratification, a process which principally entails the
execution of a formal instrument to that effect to the depositary of a multilateral treaty after its
examination and approval by heads of states or governments, often in conformity with their
nations’ respective constitutional laws and practices26. In other words, the signing and
ratification process varies across national contexts, depending the individual country’s
administrative processes, constitutional provisions and the legal system in place27. Note is also
20 That is, adding or appending the signature of the representatives of the participating states in the negotiation of the text, subject to
further confirmation by their governments
21 Article 10(b) of the VCLT
22 Ibid, Article 11
23 Ibid, see: Article 18(a).
25 Article 2(1)(b) of the VCLT
26Maluwa, Tiyanjana (2012). Ratification of African Union Treaties by Member States: Law, Policy and Practice. Journal of International
Law, 636.
27 ibid
31
taken to the effect that each member state has the power to ratify separated in different branches
of government, wherein some countries the responsibility falls to the executive as well as on
the legislative or the judiciary in other countries28. So, irrespective of the signature appended
through adoption and authentication, except otherwise states, a treaty only becomes binding on
the effective date of ratification29. However, the pace of ratification by states (that is, the time
interval between signature and ratification) remains a major concern and a challenge.
Meanwhile, the Vienna Convention on its part, does not impose any time limit for ratification30.
Looking at the case of African Union treaties, the procedure for ratification as explained,
requiring that the instrument be signed by the Head of State, the Head of Government or the
Minister of Foreign Affairs, or by representatives authorised act as such by the full powers
bestowed on them by one of these authorities. The requirement of state consent has been said
to be a clear indication that “sovereignty is not being relinquished by ratification, but rather
that ratification is a free exercise of that sovereignty31”.
Overall, international treaties create binding obligations for states that have consented to be
party to the treaty. In other words, “a treaty does not create either obligations or rights for a
third State without its consent32”. Therefore, for states that did not participate in negotiating
the treaty terms or sign them, but which to be bound by them, may such express through
accession. Article 15 of the Vienna Convention provisions that a State may express its consent
to be bound by means of accession where (a) the treaty so provides; or (b) it is otherwise
established that the negotiating States agreed that the consent of that State may be expressed
by means of accession; or (c) all of the parties have subsequently agreed that the consent of
that State may be expressed by means of accession33. Apparently, the right accorded to states
under the treaty to accede or adhere to the text and become bound by it need not be preceded
by signature. This process only requires the deposit of an instrument of accession once the
signatures are closed and depending on the instance, accession may be allowed even when the
treaties are still open for signature or before and after they enter into force, as has been the case
with some AU treaties34.
28 ibid
29 Malcom Shaw (1997). International Law. 4th edition, Cambridge University Press: Melbourne.
30 See: Article 18 of the VCLT
32 See: Article 34 of the VCLT
34 Maluwa, Tiyanjana (2012), op.cit
32
2.1.4. Entry into Force
As a matter of practice in international law, treaties still must take formal legal effect or enter
into force after the expression of consent to be bound by the treaty terms. Article 24 of the
Vienna Convention provided that ‘a treaty enters into force after the requisite number of
ratifications have been obtained, as specified in the provisions of the treaty or as agreed by the
negotiating States parties; as soon as consent to be bound by the treaty has been established for
all the negotiating states; and when the consent of a State to be bound by a treaty is established
on a date after the treaty has come into force, unless the treaty otherwise provides’35. The
Protocol to the African Charter on Human and People’s Rights on the Rights of Women in
Africa which was adopted in July 2003 and entered into force in November 2005, makes for a
good example here. Article XXIX (1) of this document provides that Protocol shall enter into
force thirty days after the deposit of the fifteenth instrument of ratification; Article XXIX (2)
states that for each State Party that accedes to this Protocol after its coming into force, the
Protocol shall come into force on the date of deposit of the instrument of accession; and Article
XXIX (3) states that the Chairperson of the Commission of the AU shall notify all Member
States of the coming into force of this Protocol.
In all intents and purposes, therefore, states enjoy rights and obligations only under treaties that
are at that time in force36. Overall, once treaties have come into force, the sovereign nations
that are bound by the treaty can consider it to be constitutional or law that needs to be
implemented domestically.
2.2. Benefits of Treaty Making: the Flavor for African States
States are the primary subjects of international law and treaties the primary source of legal
relations between and among states. The importance of treaty making is in its attempts to meet
the basic needs of states to govern and address issues of mutual concerns by way of agreements
that would in effect, and regardless of their ‘constitutional and social systems’, bring about
stability and peaceful cooperation among nations37. However, realising the benefits that may
accrue from treaties demands that, states should, upon ratification of the treaty terms ensure
the effective domestication and implementation of such treaties at the national level. The
35 See: Article 24(1 - 3) of the VCLT

37 See: The preamble of the VCLT - Considering the fundamental role of treaties in the history of international relations; and Recognizing
the importance of treaties.
33
process of domesticating a treaty entails incorporating the international obligations into the
domestic laws of the states, either by revising existing national norms or passing new
legislation. It is against this background that, one can infer that, the motivations behind AU
member states’ adoption of the OAU and AU conventions clearly indicate the benefits that
African states can derive from ratifying these treaties. However, beyond the arguments and the
explanatory memorandum that led to the elaboration and adoption of these legal instruments,
the surveys conducted in the target countries among professionals and various actors made it
possible to identify the immediate and concrete benefits that African states would gain from
the ratification of these regional conventions. The most highly recognized benefits of ratifying
and domesticating the treaties are said to broaden the rights of the citizens, promote African
best practices and promote regional and continental integration. Other benefits mentioned
include improve the legal framework of the countries, improve the international image of
respective countries, as well as promoting peace and freedom in the continent and beyond.
Benefits of ratification and domestication of the 6

treaties
10%5% 33%
24%
28%
Broaden the rights of their citizens

Promote regional & continental integration
Promote African Best Practices
Gain Foreign Aid and or Trade
Others
On the political and diplomatic level, the officials of the countries surveyed indicate that the
ratification of the OAU/AU treaties allows the country to show itself as an exemplary state,
respectful of the rule of law not only at the international level but also at the internal level with
the progressive construction of a state governed by the rule of law. As indicated above, this is
an argument and a useful asset in the negotiation of agreements not only with financial partners
but also a guarantee of legal security attractive to potential foreign investors.
34
In Burkina Faso, judicial authorities have indicated that the ratification of treaties has provided
the judge with a greater panoply of texts that can serve as a basis for jurisdictional decisions.
These instruments thus provide them with precise insights into the understanding of certain
human rights and ensure better protection of citizens and their rights. Moreover, in the
application of these provisions, the national judge has the possibility of proceeding by
comparative approach since these provisions are applied by the national courts of the other
Member States that are also parties to these treaties.
As part of the fight against corruption, Burkina Faso's ratification of the AU Convention on
Preventing and Combating Corruption has led to a strengthening of the national institutional
and normative framework with the creation in 2007 of the Autorité Supérieure du Contrôle de
l’Etat et de Lutte contre la Corruption (ASCE/LC). Similarly, the ratification of the Maputo
Protocol on the Rights of Women in Africa has led to the taking of concrete measures to
guarantee the principle of equality between men and women, as well as the guarantee of certain
rights to women such as the right to education, and the elimination of harmful practices such
as early marriages or excision.
But more than States and institutions, the main beneficiaries of the ratification of international
instruments are first and foremost the citizens, who thus see their rights better protected as well
as the resources to be used for the country's development.
2.2.1 Domestication and implementation
The place of international treaties in the legal order of African states depends on their respective
constitutions and legal traditions, most of them inherited from the former colonial power. For
some countries such as Burkina Faso and Senegal, once the government has signed-on to a
treaty (ratified) there is no additional national process to ensure required for its application or
invocation in courts. This means that, once the statutory authority has signed-on to a treaty,
citizens are entitled to the rights therein enshrined and can claim same. In other countries such
as Mozambique, Kenya and Tunisia where a dualist approach to ratification and domestication
of internalisation procedure is necessary, ratification must be accompanied by the adoption of
a specific statutory process to enable the application of the instrument by the national judge.
Such processes differ from country to country. With some, it’s as simple as a cabinet
endorsement, with others, it has to be approved by parliament or by both parliament and the
35
cabinet as is the case with Kenya38 and Mozambique. On this aspect, there may be delays and
challenges arising from lack of technical capacity, such as difficulties in drafting implementing
legislation and lack of trained personnel to deal with ratification issues broadly and
domestication in particular. There is then a necessity for enhancing the role of parliamentarians
and the participation of civil society in treaty ratification and appropriation of treaties, and the
need to equip governments with the necessary technical capacity and expertise on these issues.
The appropriation and domestication of the OAU/AU treaties also requires that the national
legal framework be brought into line with the ratified regional instruments. As an example, the
Mozambican Family Law allows the marriage of girls from the age of 16, which is contrary to
the provisions of the African Charter on the Rights and Welfare of the Child which prohibits
child marriage, i.e. under the terms of the Charter any individual under the age of 18. Similarly,
the Labour Code admits in exceptional circumstances the employment of minors aged between
12 and 15 years. Such derogation, even if strictly limited, is once again contrary to the Charter,
which prohibits all child labour. These contradictions renege owing to the fact customary and
sharia law (where it is practiced) have allowed them to go-on unabated.
Beyond the constitutional differences linked to the requirement of internalisation or not of

international treaties, the OAU/AU conventions can only really produce their effects if they are
known and used by citizens and applied by national jurisdictions. On this point, there is a need
to popularise the conventions among African citizens. One of the essential links in the
appropriation and domestication process is the actors in the judicial sector, who unfortunately
do not seem to have mastered these tools. In Tunisia, experienced judges, each with some thirty
years of experience, have thus indicated that although efforts are now being made to have
judges apply UN treaties, they have no recollection of any decision in which the judge bases
his or her decision on an OAU/AU treaty.
2.2.2 A regional strategy
The challenge faced by the AU and the member states is to put in place measures to encourage
more expeditious ratification of the regional treaties. The greater part of this challenge, of
course, falls upon the signatory states. Nevertheless, the pan-African organisation also has an
38Art 12(1) of the Treaty Making and Ratification Act states that “a person shall not ratify any treaty on behalf of the Government of Kenya
unless the treaty has been considered and approved by the Cabinet and Parliament in accordance with this Part.” Act No. 45 of 2012, Act
No. 18 of 2014, Act No. 18 of 2018.This principle which underscores Art 12(1) is in consonance with Article 2 (5) of the Constitution of
Kenya 2010 provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya.
36
important responsibility in the face of this challenge and should develop a proactive and
effective strategy to ensure not only the ratification of these treaties by member states but also
their domestication and effective compliance by member states. This view is shared by African
citizens and officials who believe that the AU has the primary responsibility, after states, for
the ratification and implementation of the continent's legal instruments.
The AU, through the AU Commission (AUC), should develop a policy to streamline the AU's
normative output for greater effectiveness and efficiency. This requires enshrining the
principles of proportionality and effectiveness in its normative policy. In practical terms, this
means committing itself to adopt new instruments only if the desired result cannot be achieved
with existing instruments or through national legislation and limiting itself to what is really
necessary. This rationalisation also means opting for a policy of saving resources, making it
possible to reduce the number of reports on the implementation of the instruments that States
have to produce by grouping them together. Besides, the process of negotiating a treaty should
ensure the involvement of civil society at the appropriate level. This would help address
concerns from interest groups, consider the resources involved and provide a clearer
understanding of the issues at hand. It would also ensure that by the time the state commits its
signature to the treaty and subsequently presents it to the legislative domestic organ for
national-level ratification, endorsement, harmonization or domestication, there is some
awareness of the subject matter of the treaty, its benefits and its implications for the state and
citizens. Such awareness would be beneficial in marshalling domestic political support for
speedy domestication of the treaty.
The slow pace of ratifications upon which this study and project is hinged, underscores the
need for a more effective mechanism than general exhortations. The AU should be more
involved in encouraging the ratification of treaties adopted under its auspices. Such
encouragement does not amount to undue interference with the state’s freedom to ratify or not
to ratify a particular treaty, but on the contrary, it simply serves to urge the state to exercise its
sovereign discretion in a particular direction. In doing so, the African Union Commission will
simply be following a practice effectively followed by other organizations, notably the United
Nations and the International Labour Organisation. Within the framework of the latter
organization, states are required under the ILO Constitution to submit within one year any
convention they sign to national authorities for ratification. They must also produce a report on
compliance with this obligation to a Committee, which publishes it together with its comments
37
and observations. The latter publication is in turn used by the ILO to overcome the problems
and promote a wider understanding of the difficulties faced by various countries in their
attempts to ratify and implement the conventions. This practice could inspire and serve as a
model for the AU
38
Chapter 3
Current Status of Ratification and Domestication of African

Union Treaties
The African continent has experienced over 50 years of international policy formulation,
generating about 49 treaties, conventions, and protocols aimed at transforming the lives of
Africa’s citizens if fully implemented. This results according to this study are converse. The
record of ratification of major AU instruments has been poor. Apart from the foundational
instruments such as the Treaty Establishing the African Economic Community, and The
Protocol to that Treaty and the Constitutive Act of the African Union, which have been ratified
by 96 per cent of AU member states, instruments relating to good governance, human rights,
anti-corruption and the rights of women, children and youth were signed by the majority (over
80%) of the member states but ratified by very few.
The African Charter on Democracy, Elections and Governance, signed by 46 member states,
has only been ratified by 34 members. The African Charter on Human and Peoples Rights on
the Rights of Women in Africa, signed by 49 (or 89%) of AU members has been ratified by
only 42 or 76 per cent of all member states. The African Youth Charter has attracted a paltry
39 ratifications or 70.9 per cent, while The African Charter on the Rights and Welfare of the
Child has been ratified by only seven or 89 per cent of all member states. In critical areas such
as infrastructure and energy, the ratification record has also been less than encouraging.
In spite of significant evidence that good governance and human rights breed peace, stability
and development, it is worrisome that none of the AU governance or human rights treaties have
100% been ratified talk less of domesticated or implemented in a manner that assures citizens
that treaty compliance is a pathway to development. Even other treaties which reason would
expect states to give significant attention to have not garnered near as much attention as these
that the UNDP project has focused on. Perhaps the UNDP should reorient the focus of the
project to look into, and support domestication and implementation while broadening the treaty
choices to include those that seek to address issues of crop insurance, disaster risk reduction
and social protection which have been signed by only 24 (54.44%) of the member states but
has so far not attracted a single ratification. The Convention for the Establishment of the
African Centre for Fertiliser Development, and the Banjul Convention on Hazardous Wastes
have been ratified by 6 (11%), 25 (46%) of all member states, respectively.
39
Process of Ratification of AU Charters, Treaties, Protocols, and Conventions as at 16 December 2020 by six pilot countries
COUNTRIES
Burkina Faso
Kenya
Mozambique
Sao Tome & Principe
Senegal
Tunisia
TREATIES DATES
African Charter Date Of 26/02/2004 17/12/2003 15/12/2003 01/02/2010 26/12/2003 30/01/2015
on Human and Signature
People’s Rights Date of 09/06/2006 06/10/2010 09/12/2005 18/04/2019 27/12/2004 23/08/2018
Ratification
Date of Deposit 09/08/2006 13/10/2010 30/12/2005 27/06/2019 30/01/2005 27/09/2018
Protocol to the Date Of 05/03/1984 17/12/2003 29/01/2016 23/09/1981

African Charter Signature
on Human and Date of 06/07/1984 23/01/1992 22/02/1989 23/05/1986 13/08/1982 16/03/1983
People’s Rights Ratification
on the Rights of Date of Deposit 21/09/1984 10/02/1992 07/03/1990 28/07/1986 25/10/1982 22/04/1983
Women in
Africa (Maputo
Protocol),
adopted in 2003
African Youth Date Of 25/03/2008 28/06/2008 25/10/2007 01/02/2010 09/10/2007 31/03/2008

Charter Signature
Date of 17/09/2008 23/01/2014 29/07/2008 19/09/2014 17/09/2009 08/06/2011
Ratification
Date of Deposit 24/10/2008 29/01/2014 28/08/2008 27/06/2019 20/10/2009 06/07/2011
African Charter Date Of 27/02/1992 01/02/2010 18/05/1992 16/06/1995

on the Rights Signature
and Welfare of Date of 08/06/1992 25/07/2000 15/07/1998 18/04/2019 29/09/1998
the Child Ratification
Date of Deposit 10/07/1992 10/08/2000 22/12/1998 27/06/2019 30/10/1998
African Charter Date Of 02/08/2007 28/06/2008 27/05/2010 01/02/2010 15/12/2008 27/01/2013

on Democracy, Signature
Elections and Date of 26/05/2010 24/04/2018 18/04/2019
Governance Ratification
Date of Deposit 06/07/2010 09/05/2018 27/06/2019
Status of Ratification of AU Charters, Treaties, Protocols, and Conventions as at 16 December 2020 by six pilot countries
40
Treaties / African Protocol to the African Youth African African Charter on AU Convention
Country Charter on African Charter on Charter, Charter on the Democracy, on Preventing

Human and Human and Rights Elections and and Combating
People’s People’s Rights on and Welfare of Governance Corruption
Rights, the Rights of the Child
Women in Africa
(Maputo Protocol)
Burkina Faso √ √ √ √ √ √
Kenya √ √ √ √ √
Mozambique √ √ √ √ √ √
Sao Tome e √ √ √ √ √ √
Principe
Senegal √ √ √ √ √
Tunisia √ √ √ √
.Overall, the snapshot above suggests that Africa is far from universal ratification of AU
instruments. Concern over the low ratification of OAU/AU treaty instruments and their impact
on the achievement of the Organisation's objectives is a crucial issue that has been raised since
the early days of the new pan-African organisation. On the eve of the birth of the AU, at the
71st Ordinary Session of the OAU Council of Ministers held from 6 to 10 March 2000 in Addis
Ababa, the Council adopted Decision A/DEC.511 (LXXI) in which it expressed the need for a
systematic review of all OAU treaties with a view to establishing their relevance, identifying
those that need to be updated or cancelled and identifying areas requiring the conclusion of
new treaties. Three years later, one of the first decisions of the AU Executive Council urged
all member states that have not yet done so to ratify or accede “as soon as possible” to OAU/AU
treaties to which they are not parties (Decision EX. CL/dec.11 (II), 10 March 2000).
Following this, at a meeting of experts convened to review OAU/AU treaties in 2004, the
Chairperson of the AU Commission observed that “it was worrying to note the slow pace of
signature and ratification [of these treaties] by Member States, bearing in mind the process of
integration that the member states had embarked on” (Summary Report of the Meeting of
Experts on the Review of the OAU/AU Treaties, OAU-AU Treaties/Exp-PRC/Rpt (I) Rev.I, 18-
20 May 2004). On its part, the Executive Council continues to reiterate its appeal to member
states to ensure that they initiate the process of ratification of new treaties within one year after
41
their adoption. The Council the established the Ministerial Committee on Challenges of
Ratification/Accession to AU Treaties and no similar body to track implementation of the
treaties. As such, for key African leaders and citizens, there are three main reasons for this lack
of enthusiasm on the part of African states to ratify AU treaties: lack of political goodwill;
ignorance of the benefits; and lack of strong opposition and active CSOs.
Drivers of challanges of ratification and domestication of AU

treaties
50
Number of respondents
45
40
35
30
25
20
15
10
5
0
Lack of Ignorance Lack of Other
Political of the Strong
goodwill benefits opposition
and active
CSO
Number of Respondents 50 40 40 23
Whatever the case may be, it goes without saying that no matter how admirable the AU’s policy
goals and objectives on any issue addressed by a treaty may be, the treaty is nothing more than
an expression of the member states’ until it is ratified and becomes binding. Indeed, ratification
is the first step towards the achievement by the state parties of the policy goals and objectives
enshrined in the treaty.
3.1 African versus UN treaty ratifications
One of the main obstacles to the ratification of OAU/AU treaties seems to be the preference
for UN treaties on similar issues. It seems that AU treaties have simply ranked low on the
priority of governments. For example, in 2002 when the Kenyan government promised that
corruption would cease to be a way of life in the country, this promise was demonstrated to the
international community, by having Kenya as the first country to ratify the UN Convention
against Corruption (UNCAC) in 2003. Although it, within the same time frame, signed the AU
Corruption Convention, it only got to ratify it 2007. This example undoubtedly explains the
conviction of African citizens that greater awareness and a condition for aid as the major
42
reasons why countries are inclined towards ratifying and domesticating the AU treaties. Other
reasons mentioned include: to ensure sustainable development and to improve local and
national instruments to align with international partners.
In absolute terms, it is difficult to identify in an abstract and general way the reasons why
African states choose to ratify one treaty rather than another. Arguments based on the theory
of rationalism are rooted in the assumption that states follow consistent well-ordered
preferences to engage in a cost-benefit analysis of their actions. When applied to treaty
ratifications, rationalism suggests that an African state will ratify a treaty, universal or regional,
only when ratification yields material benefits to it (economically, politically, diplomatically
or otherwise), and if there is a clear objective reward or self-serving outcome. For Burkinabe
CSOs, for example, the ratification of UN treaties to the detriment of African regional
instruments is justified by the desire to attract the sympathy of technical and financial partners.
Burkina Faso’s adoption of international human rights protection treaties, in particular, is one
of the conditions for obtaining foreign aid. The same opinion is shared in Sao Tome and
Principe. For their part, Tunisian officials justify their country’s ratification of the UN
Convention on the Rights of the Child, and not the African Charter on the Rights and Welfare
of the Child, on the grounds that the latter had no added value for the country's legislation. It
does seem, in the words of one civil society actor, that many African governments do not yet
measure the benefits of African integration.
In contrast, constructivists argue that a state may also ratify a treaty if it has a normative reason
to do so. Concerning human rights treaties, for example, it has been argued by some observers
43
that it is perfectly possible for a state to ratify such treaties if it believes that it is normatively
right to do so, even if there is no direct material benefit to be gained for protecting human rights
domestically or, in some cases, even in the absence of any serious intention to implement the
norms. Then some African states may be motivated to enhance their legitimacy, reputation and
esteem among their peers or even in the wider international community, by also adopting the
norm through their ratification of the treaty in question and avoiding the stigma of being left
out as a non-ratifying state. There can therefore be both a sort of virtuous circle for UN legal
instruments, with a race for ratification to present itself as respectful of the rule of law, and a
vicious circle with African regional treaties where it is the opposite: the feeling that it is not
infamous not to ratify them. A good example of this phenomenon is provided by the
comparative ratification-signature data for the UN Convention on the Rights of the Child and
the African Charter on the Rights and Welfare of the Child. The latter was adopted by the OAU
within seven months of the adoption of the former, as a regional counterpart to the universal
treaty. Yet while all AU member states have signed and, with the sole exception of Somalia,
ratified the UN instrument, the African Charter has only secured 44 ratifications. Moreover,
although two-thirds of AU member states were already signatories to the UN Convention, and
a good number of them had ratified it, when it entered into force on 2 September 1990, within
less than one year of its adoption, most of those states did not sign the African Charter, let
alone ratify it, for a much longer period after its adoption. In fact, the latter only entered into
force some nine years after its adoption and had attracted only 20 signatures and seven
ratifications during the first five years of its existence.
The last reason could be the role of domestic politics and constituencies. A liberal theory of
ratification predicts that African states will ratify treaties when powerful domestic actors lobby
for ratification, and where those actors are more readily able to express preferences to their
governments. The assumption here is that the more responsive states are to the preferences of
their citizens and domestic interest groups, the greater the likelihood that they will ratify or not
ratify the treaty in accordance with those preferences. But even as vital as this might seem,
ratification is not the ultimate driver of change at the national level. Implementation and
domestication is the core of translating instruments into tangible results.
3.2 Justification and rationale of African treaties
The need to ratify African legal instruments is mainly justified by the fact that, beyond
44
appearances, these instruments do not duplicate UN instruments, even with similar titles. They
have very often been adopted either to underline a cultural and ideological value to which
African states are attached or to enshrine elements to which African states are attached and
which were discarded during negotiations within the UN framework. It is therefore
fundamental that governments become aware of this reality, of the specific and original logic
which presided over the adoption of the OAU/AU conventions and which justifies their
maintenance.
Thus, for example, the delicate balance between tradition and modernity achieved by the
African Charter on Human and Peoples' Rights has been abundantly underlined, and there is
no need to recall it here. By way of illustration, by laying down the principle of social solidarity,
the African Charter on Human and Peoples' Rights indicates that each individual has duties
towards the family, towards society, towards the State and other legally recognised
communities, and towards the international community. The individual shall also preserve the
harmonious development of the family; respect at all times his or her parents whom he or she
shall nourish and assist; but he or she shall also ensure, in his or her relations with the Society,
the preservation and strengthening of positive African cultural values in a spirit of tolerance,
dialogue and consultation and, in general, contribute to the promotion of the moral health of
the Society. The Charter thus wished, through the provisions thus recalled, to lay the foundation
of the struggle for the respect of Human and Peoples’ Rights based on the fundamental values
of African Culture.
Another emblematic example is the African Charter on the Rights and Welfare of the Child. It
was born as a reaction to certain facts criticized by the UN process on the issue: under-
representation of Africa in the working group set up in 1979 to draft the United Nations
Convention on the Rights of the Child (only three African states: Algeria, Morocco, Senegal);
rejection of the Senegalese proposals for the inclusion of African particularities during the
second reading of the draft Convention on the Rights of the Child; total ignorance of the
African States on the UN process, many of which expect to speak about it for the first time
only during a conference on children in armed conflicts in Africa (July 6-10, 1987).
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women
in Africa, by further “liberating” African women, has a socializing scope in that it aims at a
better integration of this particular category of the African social body. Both incentive and
emancipatory, the Protocol reflects the will of African states to de-dust African ancestral
45
cultures of all that could contribute to the denial of African women’s rights.
The African Youth Charter is one of the only two international treaty instruments devoted to
youth, and it is a response to the need to develop the Charter highlighted in the AU Strategic
Plan 2004-2007 adopted by African states. This Charter underlines on the one hand that
Africa’s greatest wealth is the youth of its population and that through its full and active
participation, Africans can overcome the difficulties they face; and on the other hand, youth
represents a partner and an indispensable asset for the sustainable development, peace and
prosperity of Africa with a unique contribution to make to present and future development. The
Youth Charter thus indicates to African states the ways and means to ensure the full
development of their youth, guarantor and motor of their development.
The African Charter on Democracy, Elections and Governance, a bold initiative that
consolidates in the legal heritage of African peoples a right to democracy that is still in its
infancy, enshrines the will of African states to break with an ugly past and marks a point of no
return in Africa’s commitment to the normalization of the principles of democracy and the rule
of law.
By adopting the AU Convention against Corruption, African states aimed to show their
commitment to fighting against a scourge that undermines the development of the countries of
the continent and to establish a framework that would enable them to pool their efforts and
define common strategies to deal with it. The annual African Dialogue on Corruption,
organized by the African Union Advisory Council on Corruption (AUABC), is a framework
for consultation, exchange and development of common policies against corruption, bringing
together the various government and civil society actors involved in this fight. The adoption in
2019 of a Common Policy on Asset Recovery is an illustration of this pooling of efforts.
3.3 Domestication Experiences and Gaps
Following from the above, there is a significant gap both in the public awareness of AU treaties
and also an appreciation of their value in strengthening government policies, good governance,
the respect for human rights and advancing national development agendas in a number of
countries. This gap was confirmed in the survey which found that in 50% of cases, there is a
lack of political goodwill and about 40% ignorance of treaty benefits. These inadvertently
46
result in weak public ownership and the slow pace of domestication. To change this course, the
role of African citizens and their organisations in promoting and advocating for ratification,
domestication and implementation of these key instruments is imperative. When citizens
understand the commitments of their Heads of States and Governments they are best placed to
call for and support their implementation. Thus far, the table below shows the status of
Ratification of the six AU treaties under review.
Status of Ratification of the AU Treaties covered by the AU Treaties project
Ratified by Ratified by Increase

number of number of
Date of Date entry Date of countries (by countries
Treaty
Adoption into force last update June 2017) (by
December
2020)
African Charter on 54 54 0
June 01, October May 19,
Human and Peoples'
1981 21, 1986 2016
Rights
African Charter on the 48 49 +1

July 01, November June 27,
Rights and Welfare of
1990 29, 1999 2019
the Child
Protocol to the African +4

Charter on Human and 38 42
July 01, November September
Peoples' Rights on the
2003 25, 2005 17, 2019
Rights of Women in
Africa
African Union 37 44 +7
Convention on July 01, August February
Preventing and 2003 05, 2006 10, 2020
Combating Corruption
July 02, August June 27, 38 39 +1

African Youth Charter
2006 08, 2009 2019
African Charter on 30 34 +4
January 30, February June 27,
Democracy, Elections
2007 15, 2012 2019
and Governance
47
As such, following from the above, the sub-sections below showcase the current experience
and state of domestication in the pilot countries.
3.1.1 Burkina Faso’s Experience with Domestication of AU Treaties
The project on accelerating the ratification of AU treaties comes at a time when Burkina Faso
had already ratified the said pilot 6 treaties. However, following advocacy and the awareness
raised by the project, the government an inter-ministerial committee to monitor the ratifications
of international treaties.
Among the things accomplished by Burkina Faso as a direct consequence of the convention on
the prevention and the fight against corruption of July 11, 2003, we can mention the creation
of the Higher Authority of State Control and Fight against Corruption (ASCE) in 2007. In 2015
this High Authority was constitutionalized and accorded a sizable degree of independence from
the executive, stronger investigative powers and financial autonomy. Once operationalized,
"the new authority will be more efficient in combatting corruption" said Prof. Luc Marius
Ibriga, the State Controller-General, head of the ASCE. The same year two laws were adopted
to strengthen the powers of the institution. These are organic law 082-2015 / CNT of 24
November 2015 on the attribution, composition, organization and functioning of the ASCE /
LC and law 04-2015 / CNT of 3 March 2015 on the prevention and repression of corruption in
Burkina Faso. The mission of this institution is to strengthen measures aimed at preventing and
combating corruption in Burkina Faso, promoting integrity, accountability and transparency in
the management of the public and private sectors. This measure was taken in response to the
recommendation of the Convention of 11 July 2003 which, in its article 2(1), requires each
member state to take the necessary measures to prevent, detect, repress and eradicate corruption
and similar offenses in public and private sectors.
As for Protocol II to the African Charter on Human and Peoples' Rights, relating to the rights
of women in Africa, it has led to the taking of concrete measures aimed at guaranteeing the
principle of equality between men and women, measures to guarantee the basic rights of
women, namely the right to education, the elimination of harmful practices such as early
marriage of girls, excision, and so on. Women's right to health has been given special treatment
through the adoption of a free healthcare measure for pregnant women and children under five
since 2016. Women's right to participate in health care Political life has also experienced
48
special treatment through the adoption on January 22, 2020 of a law requiring compliance with
a gender quota in favor of one or the other sex. In this case, it is women who are targeted by
the favors of this law, since it is they whose inclusion in the composition of political governance
bodies is always problematic. In a practical way, this law aims to arouse and encourage the
political participation of women in political affairs. In addition to the law in favor of women's
political participation, other laws are adopted to ensure the protection and promotion of women
and young girls in Burkina Faso. These include, among others, Law 061-2015/CNT on the
prevention, repression and reparation of violence against women and girls and the care of
victims.
Concerning the well-being of the child, many laws and decrees are taken to ensure the
effectiveness of the rights provided for in the Charter. Some notable examples include law
n˚15-2014 / AN of 13 May 2014 on the protection of children in conflict with the law or in
danger ; of law n˚11-2014 / AN repressing the sale of children, child prostitution and child
pornography, of April 17, 2014 ; of law n˚2003-038 / AN defining and repressing child
trafficking ; etc. In the same dynamic, decree n˚2014-328 / PRES / PM / MENA / MATS of 2
May 2014 on the creation, attributions, composition, organization and functioning of a National
Council for the prevention of violence in school (CNPVE).
Finally, with regard to the Youth Charter, legislative measures are weak or inexistent. Rather,
it is practical political arrangements that are observed. This is the case with the existence of a
ministry specially dedicated to the cause of youth, their technical and vocational training, and
their employment. All successive governments always contain a ministry dedicated to this
cause.
Despite these concrete acts of execution by the administration, the question remains as to
whether citizens or their legal representatives can go to court on the basis of African treaties
duly ratified by Burkina Faso.
These measures notwithstanding, few citizens are aware of the existence of these treaties, and
even rarer are those who have knowledge of the procedure applicable to invoke the benefit of
these treaties. Consequently, it is extremely rare to see citizens invoke the benefit of these
treaties before the courts. The rare exceptions are in electoral disputes where occasionally
citizens from time to time refer to provisions drawn from the African Charter on Democracy,
Elections and Good Governance of June 30, 2007. This is the case in the decision rendered by
49
the Constitutional Council following the request of Mr. DABIRE Ambaterdomon Angelin
which pointed to the ECOWAS regional court’s decision to exclude persons who previously
supported an unconstitutional amendment which plunged the country into a crisis. Despite the
Constitutional Council upholding the ECOWAS Court decision, one of the problems in this
regard is citizen’s lack of direct access to the constitutional judge who is the guarantor of most
fundamental rights enshrined in Burkina Faso.
The above and more evidence of domestication are evidenced in the table below.
Treaty Ratification Domestication evidence Status of Best practice Areas support is

Status implementation needed
African Charter on Ratified The constitution endorses Burkina Faso The Charter is There is a need
Human and Peoples the Bill of Rights and periodically submits frequently invoked to support the
Rights guarantees basic freedoms reports to the African before the African state in the
which are encapsulated in Commission on Court on Human preparation of its
AU treaties. Human and Peoples' and Peoples' periodic reports
Other national legislation Rights. Rights. in order to avoid
which guarantee the The 5th and 6th Some cases delays in their
protection of Human Rights cumulative periodic concerning Burkina transmission.
and promote good reports 2015-2017 are Faso:
governance include: being prepared and 1. Case of Issa There is also the
• The Personal and Family will soon be submitted Lohé Konaté v. need to support
Code; to the African Burkina Faso, civil society
• The Penal Code ; Commission on Application No. organizations for
• The Code of Criminal Human and Peoples' 004/2013, violation the regular
Procedure; Rights. of Article 9 of the production and
• Law No. 028-2008 / AN of Burkina Faso civil Charter. presentation of
May 13, 2008 on the Labor society organizations 2. Case of Norbert shadow reports
Code; present shadow Zongo, Abdoulaye to the African
• Law No. 001-2016 / AN of reports and make Nikièma, Ernest Commission on
March 24, 2016 statements to the Zongo, Blaise Human and
establishing the National African Commission Ilboudo and Peoples' Rights.
Commission for Human on Human and MBDHP c. Burkina
Rights; Peoples' Rights. Faso, application n
° 013/2011,
At the institutional level, violation of Articles
Burkina Faso has: 1 and 7 of the
• a ministry in charge of Charter.
human rights;
• a National Human Rights
Commission;
Protocol to the Ratified We have many laws There is a toll free

African Charter on protecting women's rights: number (80 00 11 12)
Human and People’s • The 1989 Personal and available to the
Rights on the Rights Family Code; population to
of Women in Africa • The Penal Code which denounce cases of
(Maputo Protocol) represses harmful traditional excision;
practices; There are campaigns
to popularize the
50
• Law No. 028-2008 / AN of gender quota law and
May 13, 2008 on the Labor awareness
Code; campaigns on
• Law n ° 081-2015 of 24 violence against
November 2015 on the women.
statute of the public service;
• Law No. 061-2015 / CNT of
September 6, 2015 on the
prevention, repression and
reparation of violence
against women and girls and
the care of victims;
• Law n˚15-2014 / AN of 13
May 2014 on the protection
of children in conflict with the
law or in danger;
• Law n˚11-2014 / AN
repressing the sale of
children, child prostitution
and child pornography, of
April 17, 2014;
• Law n˚2003-038 / AN
defining and repressing child
trafficking;
• Law No. 003-2020 / AN of 22
January 2020 establishing
the quota and modalities for
the positioning of candidates
for legislative and municipal
elections in Burkina Faso;
• Law n ° 049-2005 on
reproductive health in 2005;
• The law establishing the
CNDH imposes the
equitable representation of
women and men in the
composition of the
commissioners (1/3 of one
or the other) and gender
parity in the composition of
the board.
We also have the existence
of structures for the
promotion of women's rights:
• The gender caucus and the
human rights and gender
committee at the National
Assembly;
• The National Council for the
Promotion of Gender
(CONAP / genre);
• The National Committee to
Combat the Practice of
Excision (CNLE);
51
• The Ministry of Women,
National Solidarity, Family
and Humanitarian Action
(MFSNFAH).
African Youth Charter Ratified Burkina Faso has a Ministry
in charge of youth and a
National Youth Council
(CNJ) which acts as the
leader of youth
organizations.
African Charter on the Ratified Many laws promoting the • Presentation by Non-state actors There is a need
Rights and Welfare of rights of the child have been Burkina Faso of such as civil society to support the
the Child passed. We can cite: periodic report on organizations are state in the
• Law 013-2007 on the the implementation associated with the preparation of its
orientation law of education of the ACRWC; government report periodic reports
• Law No. 15-2014 / AN on • Transmission of the validation in order to avoid
the protection of children in 4th, 5th and 6th workshop. delays in their
conflict with the law or in cumulative periodic transmission.
danger reports of the BF on There is also the
• Law establishing, the implementation need to support
attributions, composition and of the ACRWC, civil society
functioning of the National period 2011-2015; organizations for
Coordinating Committee of • Presentation by civil the regular
the National Action Plan to society production and
Combat the Worst Forms of organizations of presentation of
Child Labor (2014) alternative reports shadow reports
• Law No. 011-2014 / AN of on the to the African
April 17, 2014 repressing the implementation of Commission on
sale of children, child the ACRWC to the Human and
prostitution and child BF. Peoples' Rights.
pornography
• Law n ° 062-2015 / CNT on
the status of the ward of the
nation
• Decree n ° 2009-365 of
May 28, 2009 determining
the list of hazardous work
prohibited for children in
Burkina Faso (decree
reviewed)
There are also several

structures dealing with
issues of children:
• National Council for
Children
• Directorate of protection
and fight against violence
against children;
• Directorate for the fight
against child labor and its
worst forms
• Direction of placements,
adoptions and sponsorships
• National Council for the
52
Prevention of Violence in
Schools
• School management
committee
• National coordinating
committee of the national
action plan to combat the
worst forms of labor
• Child protection working
group etc.
African Charter on Ratified Burkina Faso has a law on ACDEG was There is a regular It would be
Democracy, Elections the electoral code, namely internalized in the holding of elections interesting to
and Governance Law No. 014-2001 / AN of Transition Charter in in a peaceful support Burkina
July 3, 2001, and an Burkina Faso from atmosphere; Faso in the
Independent National 2014 to 2015. process of
Electoral Commission appropriating
(CENI) responsible for this Charter
regulating the elections. because there
There are also the judicial are still efforts to
bodies responsible for be made in this
settling electoral disputes. area.
These are the administrative
courts, the Council of State
and the Constitutional
Council.
AU Convention on Ratified Suffice to mention the Each year, UNDP Corruption is a
Preventing and creation of the Higher Burkina supports growing scourge
Combating Corruption Authority of State Control ASCE-LC in the in Burkina Faso.
and Fight against Corruption celebration of the To this end,
(ASCE) in 2007. In 2015 this international day support from the
High Authority was against corruption; Region could
constitutionalized and The declaration of help to fight this
granted a sizable degree of assets before scourge.
independence from the taking up office for
executive, stronger certain
investigative powers and responsibilities.
financial autonomy. UNDP also
These are organic law 082- supports anti-
2015 / CNT of 24 November corruption civil
2015 on the attribution, society
composition, organization organizations.
and functioning of the ASCE
/ LC and law 04-2015 / CNT
of 3 March 2015 on the
prevention and repression of
corruption in Burkina Faso.
There is also :
• Law 025-2018 / AN of May
31, 2018 on the penal
code;
• The law on the code of
criminal procedure;
• The law on the fight
against money laundering
53
and the financing of
terrorism;
Regarding the Burkinabè
institutional anti-corruption
mechanism, we have:
• Administrative
bodies
- The Higher State and Anti-
Corruption Authority (ASCE-
LC);
- The National Financial
Information Processing Unit
(CENTIF) and
- The National Coordination
for the Control of Police
Forces (CONACFP)
• Judicial bodies
- Judicial centers specializing
in the fight against economic
and financial offenses;
- The Court of Auditors
- The High Court of Justice
Non-state actors: the
National Anti-Corruption
Network (REN-LAC);
investigative journalists;
Following from the above, there is an even greater need to focus advocacy towards the
popularization of AU treaties as an impetus for domestication and implementation. This
conclusion is predicated on the fact that, surprisingly as key stakeholders in the implementation
of AU treaties, most judges interviewed in view of this study were little informed about AU
treaties broadly and the six focus treaties in particular. As such, it is highly recommended that,
the project in Burkina Faso focuses on domestication and implementation; and should consider
working with local actors in the following areas:
a. Human Rights - supporting the implementation of human rights charters (Africa

Charter on Human and Peoples Rights with specific accent to provisions relating to
the rights of women and welfare of children which read alongside these treaties would
inadvertently popularize them.
b. Anti-corruption – supporting implementation of the African Charter on Preventing
and Combating Corruption while leaning on the work commenced by the United
54
Nations Office on Drugs and Crimes in furtherance of the drive towards the
implementation of the United Nations Convention against Corruption (UNCAC)
c. Supporting the implementation of the African Charter on Democracy, Elections and
Governance (ACDEG) which has gained currency in political circles but needs to be
expanded to youth forums for purposes of expanding the political space and
broadening the circumference of persons who hold governments accountable.
3.1.2 Kenya’s Experience with the implementation of AU Treaties
For Kenya, the benefits to treaty ratification are far reaching primarily because upon ratification
they automatically become part of the laws of Kenya and will be readily cited by practitioners
within the legal system. The courts have observed that the relationship between international
instruments that Kenya has ratified and legislation that lacks clarity. Some courts are of the
view that although it is generally expected that the government through its executive ratifies
international instruments in good faith on the behalf of and in the best interests of the citizens,
it would not have been that the framers of the Constitution would have intended that
international conventions and treaties should be superior to local legislation and take
precedence over laws enacted by their chosen representatives. As a consequence, these courts
hold the view that, the nature and extent of application of treaties must be determined on the
basis of the subject matter and whether there is domestic legislation dealing with the specific
issue at hand bearing in mind of the legislative authority, which is derived from the people of
Kenya. So far only one court has ruled on this matter. Another declined to make a ruling on
the same when it was called upon to. The ruling weakens the position of AU treaties and other
international conventions and unless overturned it precedent to subordinate courts and
persuasive within the High Court. Academics and research institutions should research further
on this subject. Furthermore, development partners could support this research and
engagements between researchers and the judiciary, as well as supporting public interest
litigations through non-governmental (NGOs).
This notwithstanding, increasingly in almost all petitions to the courts for the enforcement of
the Bill of Rights, the ACHPRs and other AU instruments feature prominently alongside the
UN Bill of Rights. Additionally, in Kenya, there are some public interest litigations whose
judgments have contributed to the enforcement of human rights. For instance, in the judicial
55
interpretation of the rights of intersex persons, the Court in ‘Baby A’ (Suing through the Mother
E A) & another v Attorney General & 6 others directed the Government to consider developing
an appropriate legal framework governing issues related to intersex children based on
internationally acceptable guidelines. Pursuant to the Ruling in ‘Baby A,’ the Attorney-General
constituted the Taskforce on Policy, Legal, Institutional and Administrative Reforms
Regarding Intersex Persons in Kenya. The Taskforce in its deliberations relied on the following
AU instruments: the ACHPR which safeguards all people against discrimination and sets out
the right to equal treatment and protection before the law for all individuals, and the
inviolability of a person’s physical integrity; the Child Charter that commits Member States to
the protection of all children against discrimination, child abuse and torture, harmful social and
cultural practices and sexual exploitation among others; the African Commission Principles
and Guidelines that explicitly recognise intersex people as a vulnerable and disadvantaged
group of people, who face or continue to face significant impediments to their enjoyment of
economic, social and cultural rights; and a panel discussion ‘Intersex human rights: Challenges
and opportunities’ convened in Banjul, the Gambia on the sidelines of the 61st Ordinary
Session of the African Commission on Human and Peoples’ Rights. As a result of these
deliberations far-reaching recommendations were made that contributed to the enumeration of
the intersex people as a special category during the 2019 national population census. Kenya
become the first country in Africa to formally recognize people who identify their gender as
intersex.
In the performance of its tasks and to enhance its efficiency, the ACHPRs makes provision for
the Commission to work with other partners in the field of human rights in Africa. The
Commission has granted observer status to some Kenyan NGOs. NGOs with observer status
have participated directly in the Commission's activities (public sessions of the Commission
and its subsidiary bodies) and further are involved in the preparation of “shadow” reports on
the human rights situation in Kenya, thus keeping government on its toes. Some NGOs have
litigated at the African Commission and the African Court and as a result enhanced the access
to justice by communities and individuals in Kenya. In 2017, the African Court on Human and
Peoples’ Rights (African Court) delivered it’s ruling in the matter of the African Commission
on Human and Peoples’ Rights v Kenya which revolved on the expulsion of the Ogiek people,
a Kenyan hunter-gatherer community, from their ancestral lands in the Mau forest. This
resulted from the fact that the African Commission had not managed to settle the conflict, and
therefore transferred it to the African Court in 2012. The Court widely followed the African
56
Commission’s application and found that the eviction of the Ogiek without consultation
amounted to several rights violations under the ACHPRs: the right to non-discrimination,
culture, religion, property, natural resources and development. Kenya’s argument that the
eviction was justified by the need to protect the Mau forest was dismissed by the Court. In
2003, the Centre for Minority Rights and Development (CEMIRIDE) took a case to the African
Union Commission on behalf of the Endorois Community involving the displacement of the
Endorois Community, an indigenous people, from their ancestral land, the failure to adequately
compensate them for their loss of property, the disruption of the community's pastoral
enterprise and violations of the right to practice its religion and culture, as well as the overall
process of development of the Endorois people. The Commission found the Republic of Kenya
to be in violation of provisions of the African Charter and made recommendations for
restitution and compensation. The Federation of Women Lawyers, Kenya and International
Center for the Protection of Human Rights represented Priscilla Njeri Echaria in a case against
Kenya filed in September 2009. The prayers were that the African Commission would find
Kenya in violation of ACHPRs and recommend that she enacts legislation aimed at effecting
the property rights of married women before a specific time. The African Commission was
satisfied that a prima facie case existed as the matter hinged on the interpretation and
application of particular provisions of the African Charter with regards to the Victim’s case,
and it could determine without the necessity to require a systematic pattern of violations. The
case was however determined on the Commission’s finding that the complainants had failed to
explain the wide interval between exhaustion of local remedies and the Communication to the
African Commission. These cases have been impactful. Although the Government is yet to
implement the Ogiek judgement, the decisions of the African Commission, have time and again
been referenced by the national courts and have contributed to legal and policy changes.
The AU treaties have contributed to EAC’s concerted efforts in transnational crimes. Drug
trafficking, trafficking of persons, human smuggling, insurgencies and terrorism, corruption,
smuggling of weapons and other commodities, and cybercrimes, are some of the crimes that
traverse boundaries and which need a concerted effort by states. The AU Corruption
Convention, has provisions requiring State Parties to provide each other with cooperation and
assistance to prevent, detect, investigate and punish for corruption and related offences. The
Child Charter requires State Parties to take appropriate measures to prevent the abduction, sale
of, or trafficking of children for any purpose or in any form, by any person including parents
or legal guardians of the child. In the East African region, EALA passed The East African
57
Community Counter Trafficking in Persons Bill, 2016. The Act provides a legal framework at
the EAC level to prevent the counter-trafficking in persons, paying particular attention to
women and children, and vulnerable members of the society. It calls for the protection and
assistance of victims of trafficking in persons in a manner that respects their human rights, and,
the promotion of cooperation and harmonized action among the Partner States in order to
prosecute perpetrators and comprehensively counter trafficking in persons. In deliberating the
Bill EALA referenced the Maputo Protocol whose Article 2 (4) (g) calls on Member States to
prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and
protect those women most at risk.39
An additional impact to AU treaties and other international conventions is the progressive

change of Kenya’s human rights approach to governance. The over two-decade reform process
in Kenya has seen matters of human rights come to the fore. The Human Rights Approach cuts
across the entire COK,2010. Over and above the progressive provisions in the Bill of Rights,
entitlements for the citizenry are reinforced in Chapters on citizenship, land and environment,
representation of the people, commissions and independent offices and others. The devolved
structure of government rides on the need that all citizens should access services from
Government. Through recognition of the rights of communities to manage their own affairs
and further their development, devolution works towards the equitable share of national and
local resources throughout the country. The framework addresses historical injustices and puts
in place mechanisms that enable citizens to access justice. The Human Rights Approach is
buttressed in the National Policy and Action Plan on Human Rights in which the Government
makes a firm commitment to human rights as embodied in CoK,2010 and international and
regional human rights instruments that Kenya is a state party, and further commits to a strict
accountability for the implementation of human rights. The implementation process is clear
and is a collaborative effort between the Government Ministries, Departments and Agencies,
civil society, private sector, academic institutions and all other stakeholders. It includes the
formation of focal points in Government Ministries, Departments and Agencies – Human
Rights Units. Constitutional Commissions in particular KNHRC, NGEC and CAJ are expected
to carry out their mandates under their respective Acts to monitor and evaluate the
implementation of this policy. To this they continuously advise on suitable human rights
indicators. Human rights indicators help gauge the human rights impact of government
39The Official Report of the Proceedings of the East African Legislative Assembly 149 th Sitting – Third Assembly: Second Meeting – Fifth
Session, Tuesday, 18 October 2016
58
programmes as well as the degree to which the processes used adhere to human rights
principles. Because a stable budgetary support is needed in the enforcement of human rights,
Government is to ensure that resources are mobilized in its budgetary plans to support the
mainstreaming of human rights in planning and budgetary process in the various Government
Ministries, Departments and Agencies. Every Ministry and Agency is required to provide for
human rights realization in its budgets so that adequate resources are provided for the
implementation of specific projects aimed at promoting human rights. In as much as
Government continues enlisting the support of its development partners in the implementation
of human rights initiatives, it has committed to providing the bulk of the budgetary support.
Moreover, it recognizes the role of non-governmental organizations in human rights
promotion. A few CSOs have developed clear engagement strategies that encompass
programmes and projects that contribute to Kenya’s compliance to AU and other international
treaty obligations. More CSOs need to be involved and more funding for programmes for
litigating human rights is needed. Some CSOs also have oversight programmes aimed at
ensuring that sector issues get government budgetary allocations (for example, gender
responsive budgeting), programmes that enable lobbying and advocacy, and programmes that
contribute to the capacity building of officials in state departments, among others. With
additional support the involvement of CSOs in AU treaties projects could contribute to Kenya’s
ratification process and implementation of AU treaties.
Consequent to the above, the two tables below offers an overview of Kenya’s ratification
trajectory in so far as the six pilot AU treaties are concerned and the status of domestication.
And although not specific, despite growing awareness, there is a need for increased advocacy
around key AU treaties.
Treaty Date of Date of Date of Date of

adoption Entry into Kenya’s Kenya’s
Force Signature Ratification/
Accession
African Charter on Human and 01.06.1981 21.10.1986 - 23.01.1992
Peoples’ Rights (ACHPRs)
Protocol to the African Charter on 01.07.2003 25.11.2005 17.12.2003 06.10.2010
Human and People’s Rights on the
Rights of Women in Africa (Maputo
Protocol)
African Charter on the Rights and 01.07.1990 29.11.1999 - 25.07.2000
Welfare of the Child (Child Charter)
African Youth Charter 02.07.2006 08.08.2009 28.06.2008 23.01.2014
AU Convention on Preventing and 01.07.2003 05.08.2006 17.12.2003 03.02.2007
Combating Corruption (AU Corruption
Convention)
59
African Charter on Democracy, 30.01.2007 15.02.2012 28.06.2008 Pending
Elections and Governance (ACDEG)
Treaty Ratification Domestication Status Status of Best practice Areas

status implementation support is
needed
African Charter on Ratified Pursuant to Art. 2(6) Constitution - Expansion of space for the ACHPR has been Resourcing,
Human and Peoples of Kenya, ‘international treaties enjoyment of civil, political, utilized in the Institutional
and conventions ratified by Kenya economic, social, and advancement of Capacity building
Rights on ratification or accession cultural freedoms and fundamental rights and and technical
become part of the laws of Kenya.’ participatory democracy freedoms through the capacity
An indicative article however is on progressively being realized. court’s reliance and strengthening of
art.21 of the Constitution which (notable judicial reference to the charter. Kenya National
requires enactment of legislation pronouncements on: E.g., for example, in the Commission on
to enable realization by Kenya of Settlement of squatters, recognition of the Human Rights to
its full international obligations in protection from arbitrary intersex in Kenya, and to enhance its
respect of human rights and arrests and persecution, inclusion of the intersex compliance
fundamental freedoms. expansion of recognition of community in the 2019 monitoring and
the rights of LGBTQI+, population census; Civil reporting
Recognition and protection of society groups capabilities of
marginalized communities utilization of the Governments
(Intersex, women, children, available mechanisms fulfillment of
and elderly of the African Court on commitments
- Recognition of justiciability of Human and Peoples’ under the
economic, social, and Rights (African Court) Charter.
cultural rights in Kenya and the African
(notable court cases) Commission in the Technical
advancement of the capacity building
rights of indigenous of duty bearers
People’s in Kenya (2017 (Government
Ogiek Judgement) Officials and
Government
Institutions
concerned)
Protocol to the Ratified Pursuant to art.2(6) Constitution - Expansion of space for the Notably, women Resourcing,
African Charter on of Kenya, ‘international treaties enjoyment of civil, political, representation in Institutional
and conventions ratified by Kenya economic, social, and parliament, inclusivity Capacity building
Human and People’s on ratification or accession cultural freedoms and regarding sexual and technical
Rights on the Rights become part of the laws of Kenya.’ participatory democracy reproductive health and capacity
of Women in Africa An indicative article however is on progressively being realized rights, and inclusive strengthening of
(Maputo Protocol) art.21 of the Constitution which for women. educational policies of Kenya National
requires enactment of legislation re-entry of teenage Commission on
to enable realization by Kenya of mothers to learning Human Rights to
its full international obligations in institutions, enhance its
respect of human rights and establishment of safe compliance
fundamental freedoms. centers and shelters monitoring and
from forced early reporting
marriage and domestic capabilities of
violence. Governments
fulfillment of
commitments
under the
Charter.
Technical
capacity building
of duty bearers
(of Government
Officials and
Government
Institutions
concerned)
African Youth Ratified Pursuant to art.2(6) Constitution - Decentralized and coherent The ratification of this Resourcing,
of Kenya, ‘international treaties youth engagement platforms Charter in 2014 enabled Institutional
60
Charter and conventions ratified by Kenya promoted, formulated, and development of the Capacity building
on ratification or accession strengthened, including Kenya Youth and technical
become part of the laws of Kenya.’ youth participation in Development Policy by capacity
governance. government and which strengthening for
has contributed to CSOs, NGOs,
milestones in Academia and
development of youth think tanks to
development policies. engage with
Government of
Kenya,
Parliament, and
Judiciary on
youth centric,
solution-oriented
policy issues.
African Charter on Ratified Pursuant to art.2(6) Constitution - Expansion of space for the ACRC has been utilized Sensitization and
the Rights and of Kenya, ‘international treaties enjoyment of civil, political, in the advancement of training of rights
and conventions ratified by Kenya economic, social, and fundamental rights and holders and duty
Welfare of the Child on ratification or accession cultural freedoms of children freedoms through the bearers on
become part of the laws of Kenya.’ and by children including court’s reliance and Charter for
An indicative article however is on increased awareness of reference to the charter expanded
art.21 of the Constitution which protection measures, including through understanding,
requires enactment of legislation mechanism, and tools for advocacy for coherent interpretation
to enable realization by Kenya of protection by public. mechanism, and tools and monitoring
its full international obligations in for the rights of the child by Judiciary,
respect of human rights and protection, respect, and Parliament and
fundamental freedoms. fulfillment. stakeholders
Kenya is among the

group of African
countries that have
adopted laws,
“continuation” or
“reentry” policies, and
national strategies, to
ensure that pregnant
students can resume
their education after
giving birth
African Charter on Ratified Pursuant to art.2(6) Constitution - Government of Kenya just Best practices pursuant Capacity building
Democracy, of Kenya, ‘international treaties acceded to ACDEG on 7 to Kenya’s accession to and technical
and conventions ratified by Kenya January 2021. ACDEG are yet to be capacity
Elections and on ratification or accession - Notable, Kenya has several documented. strengthening of
Governance become part of the laws of Kenya.’ policies and legal all actors and
An indicative article however is on frameworks giving effect to stakeholders on
art.21 of the Constitution which ACDEG. ACDEG
requires enactment of legislation application, and
to enable realization by Kenya of reporting.
its full international obligations in
respect of human rights and
fundamental freedoms.
AU Convention on Ratified Pursuant to art.2(6) Constitution Kenya has several legislations Kenya has been Resourcing,
Preventing and of Kenya, ‘international treaties directly and indirectly addressing measuring corruption Institutional
and conventions ratified by Kenya concerns of corruption including since the 2007, in the Capacity building
Combating on ratification or accession the Ethics and Anti-Corruption context of on-going and technical
Corruption become part of the laws of Kenya.’ Commission Act , 2003 which performance contracting capacity
establishes the anti-corruption reforms that were strengthening of
agency, its functioning, introduced. It has Government
independence and oversight; developed Corruption Officials and
Provides for its regulation, eradication performance Institutions
management, expenditure and indicators and tasked concerned. to
accountability of election- the Ethics and Anti- increase public
campaign funds during Corruption Commission safe access, and
elections; Enables it to enforce (EACC) to monitor and engagement;
standards of ethics and integrity evaluate their investigative and
among public officers; and implementation. prosecution
provides for the criminalisation of capacities;
61
money laundering; Provides for Laws enacted to resourcing on
the protection, rights and welfare compliment Kenya’s public
of victims of offences; and international obligations sensitization and
provides for the right to access regarding the AUCPCC awareness and
public information. include: building of
Leadership And Integrity effective
Act, 2012 communication
The Bribery Act, 2016 infrastructure.
The Public Officer
Ethics Act, 2003
The Anti-Corruption and

Economic Crimes Act,
2003
The Public Finance
Management Act, 2012
Consequently to the above, in Kenya the project would garner much impact in the next phase
with a focus on:
Charter on Human and Peoples Rights with specific accent to provisions relating to the
rights of women and welfare of children which read alongside these treaties would
b. Supporting the ratification and implementation of the African Charter on Democracy,
Elections and Governance (ACDEG) which has gained currency in political circles but
needs to be expanded to youth forums for purposes of expanding the political space and
broadening the circumference of persons who hold governments accountable. This is
particularly important for Kenya which has made significant strides following the 2008
election-related violence. The gains in the last decade need constitutional and treaty
safeguarding and the need for multi-stakeholder coalition to advocate for the
ratification and implementation of the ACDEG is timely and urgent particularly in the
light of elections billed for 2022.
3.1.3 Mozambique’s experience with Implementation of Au Treaties
For the specific case of Mozambique, the impacts of ratification and domestication of
international treaties, with special focus on those of the African Union, under analysis have
had positive impacts on improving governance, transparency and State responsibility (70%),
as evidenced in the graph below which shows responses from key informants who responded
to this study’s questionnaire. In addition, the ratification of instruments related to the fight
62
against corruption and good governance contributed to attract foreign investment, such as the
extractive industry, the exploitation of coal and natural gas.
Impacts of Ratification and Domestication of Treaties
Impact of Ratifying and Domesticating Treaties

7%
3% Improved governance,
transparency and
accountability
20%
Sanction relief or more
Foreign Direct Investment
Good national rating and

70% popularity with electorate
Despite the work done by the Ministry of Foreign Affairs, the Ministry of Justice and the First
Commission of the Assembly of the Republic, in analyzing and discussing the potential and
limits of international legal instruments in Mozambican domestic law, there is still an enormous
challenge to “design laws substantial changes that add structural aspects to the treaties signed
and ratified by Mozambique”40. This causes some of the instruments under analysis to require
adjustments to the internal legal framework of which the staff working on these are junior to
expeditiously affect the kinds of changes required domestically to trigger domestication and
implementation of the AU and other international treaties. As such, there is a need to create
teams of experts and jurists specialized in International Law and Constitutional Rights to
address the needs and demands of interpretation and legal production, since there is a huge lack
40 MATHE, Cláudio (2020). Jurista e Funcionário da Direcção dos Assuntos Jurídicos e Consulares do Ministério dos Negócios Estrangeiros
e Cooperação da República de Moçambique – MINEC. Entrevistado no dia 14 de Agosto de 2020. Maputo.
63
of knowledge of international treaties. These would be able to raise awareness around AU
treaties and trigger national level debates of the best forms of domestication and
implementation taking into account the Mozambican national context and its weak
dissemination process.
The study found that in the case of Mozambique, the imperatives and haste related to the need
to sign and ratify international instruments often competes with domestic political agendas of
political figures who often prioritise pleasing the people who elected them. Consequently,
treaties suffer because of the lack of political will and also because politicians fail to see the
correlation between their politics and treaty provisions. This ignorance, coupled with the lack
of strong political opposition and active civil society that advocates for the domestication of
AU treaties is the reason why in Mozambique AU treaties are less known.
Causes for Constraints to Accelerate the Domestication of African Union Treaties in

Mozambique
Drivers of Challenges of Domesticating AU

treaties in Mozambique
16
No. of Respondents
14
12
10
8
6
4
2
0
Lack of Ignorance Lack of Other
Political of the Strong
goodwill benefits opposition
and active
CSO
In other instances where the government has signed a treaty, ratification and domestication
take time because the government still faces the challenge of harmonizing the provisions of
these treaties with national legislation, since in several cases there are clashes between these
with Mozambican constitutional, cultural and religious norms. And since several cultural
practices are repugnant to natural justice, equity, good conscience and human rights, when
seized with matters of grave human rights concerns, the national institutional and legal leaning
is towards common acceptable cultural practices.
64
Regarding the cases of citizens or their legal representatives being able to go to court based on
African treaties duly ratified by the State, in Mozambique, there is a case of two citizens who
filed a complaint with the African Commission on Human and Peoples' Rights, against the
Mozambican State and another case of an attempt to bring a complaint that has not yet
materialized. The first is the case of José Eugêncio Zitha and Pacelli Zitha who lodged a
petition with African Commission on Human and Peoples 'Rights against the state of
Mozambique for violation of Articles 2,4, 5, 6 and 7(1) (d) of the Charter.41
The second case was an intention that the Center for Democracy and Development - CDD
presented, in January 2020, through its Director, Adriano Nuvunga, in suing the Mozambican
State before the African Commission on Human Rights, for the delay in the trial of police
officers involved in the murder of an election observer and social activist, Atanásio Matavel,
on the eve of the Sixth Local Elections in Mozambique, which took place on October 15, 2019.
When lead stakeholders in these cases were interviewed, they advised that, the African Courts
rigorous “exhaustion of local remedies” principle could serve as a deterrence to even the few
Africans cognizant of this supra national court process from bringing matters to the court. As
such states are more likely to get away with human rights violations even those they have duly
ratified and domesticated.
When asked if judges in pilot countries ever draw inspiration from African jurisprudence or
allude to AU treaties in their judgments, 40% respond negatively. Only 33% responded
positively, as can be included in the chart below.
The Members States of the African Union Judges do some time mention or reference to the treaties of
the Organization in its Decisions
45% 40%
40%
33%
35%
30% 27%
25%
20%
15%
10%
5%
0%
41 Zitha v. Mozambique, Decision, Comm. No. 361/2008 (ACmHPR, Mar. 2011)
65
As a microcosm of the African reality, in the specific case of Mozambique, the judges and
other legal practitioners make very little use of the instruments ratified by the State of
Mozambique. Issues related to the promotion of human rights have been incorporated very
recently into law training curricula. In addition, even at the university level, little is covered on
the issue of human rights, law of treaties and international organizations. This creates
a huge deficit in terms of knowledge about the contours of the treaties.
Treaty Ratification Domestication status Status of implementation Best practice Areas support is
Status needed
African Charter Ratified on -The provisions placed in The state is trying to move Constitution and Make the
on Human and 22/02/1989 the Banjul Charter can be from the theory to practice. other laws were implementation of
Peoples’ found in Mozambican Challenges with the designed and this Key instrument a
Rights Constitution of 2018; knowledge of the charter inspired by the reality;
(ACHPR) National Laws, National remain. A recent study principles
Plans, Legislations, the carried out by the CSO of enshrined in This includes capacity
Republic Bulletin Mozambique has disclosed ACHPR. building of the
- Creation and that only 21% of the judiciary on the
operationalization of the respondents is jurisprudence of
NHRI’s: knowledgeable about this So far, the regional and
1. NHRC Law n° 33/2009 treaty. This calls upon the realization of international human
of 22 December government on invest on a workshops rights mechanisms,
2. Ombudsman Law n. strong advocacy policy on involving multiple capacity building for
15/2012 of 14 August human rights. stakeholders such members of
The Code of Criminal government parliament, law-
Procedure; Penal code; On the hand, the same officials, members enforcement agents
Policies and National application of the Charter of NHRI’s, CSO’s and security agents. It
Development Strategies; remains the case. and NGO’s with also calls upon
Family Law, Decrees, The Justice system strives collaboration of strengthening NHRI’s,
Creation of Proposal of to improve the protection of cooperation financial
National Plan for Human human rights in the delivery partners has been independence of the
Rights, Creation of Prison of justice services. The one of Ombudsman and
Lesgislation. In addition national legal framework big gains in the revision of the
to that, the right to non- addressing the work of the promotion, framework of the
discrimination and judiciary is mainly aligned protection and NHRC towards
equality fixed in ACHPR with the standards of realization of aligning with the Paris
were placed within the human rights and ongoing human rights Principles, as well as
National Laws;Adoption efforts are being made to their technical
of the Employment Policy align operational guidelines capacity on human
that clear protect the to and documents for the work rights issues.
work under equitable and of the judiciary. However,
good conditions, equal access to legal remains There is a need to
payment for equal work quite below the minimum create one
enshrined by the Charter; international standards. The legislation through
The Freedom of same study, indeed, shows the one law; and one
66
expression law; Press that most of the National Plan that
Law; The Right to respondents believes that protects the rights of
information law; the lack of protection of people with Albinism,
human rights in the country this includes the
is due to the weak amendment of the
performance of the Constitution
judiciary. NHRIs regularly
perform monitoring
exercises in the spirit of
their mandate, however
they lack of full institutional
capacity and
independence. A recent
assessment carried out by
NANHRI has demonstrated
that the NHRC of
Mozambique is far from
having all requirement to be
duly operational for the
mandate it was set forth for.
Protocol to the 9/12/2005 Provisions enshrined in To date, Mozambique has Many legislations Despite of great
African Charter Maputo Protocol can be registered improvements in and operational progress in terms of
on Human and seen in national laws the legal framework. documents were creation of laws,
People’s such as the Mozambican • Resolution no. 36/2018 of established to plans and
Rights on the Constitution of 2018 in 12 December protect the rights legislations, the
Rights of Articles 36 and 122; and • October - Approval of of women. The Implementation and
Women in many laws, plans and the government has Dissemination of
Africa (Maputo legislations established at Gender and Implementation also mobilized Maputo Protocol is
Protocol) national level to promote Strategy substantive needed, women
and protect women • IV National Plan for the resources and don’t feel protected
rights. Below are the Advancement of programmatic by the laws, rules
evidences:Land Law, Women (2018-2024) commitments with and regulations
Law n. 19/97 of 1 October • National Plan for international placed in the Maputo
- Family Law, Law n. Prevention and Combating development Protocol. The poor
22/2019 of 11 Violence Based on Gender partners to and vulnerable
December, in (2018-2021) improve the women don’t feel
substitution of Law n. • National Strategy for wellbeing and served by the
n.º 10/2004, of 25 of Prevention and Combating protection of the Constitution because
August: Premature Marriages in rights of women of lack of knowledge
- Law on Domestic Mozambique (2016-20198); and girls, through about their rights.
Violence of 2009; • Planning approach and large scale Every day we have
- Law on Human Budgeting from a Gender projects such as violations against
Trafficking, Law N. Perspective in the state. the EU/UN women in
6/2008 of 9 July • Sectoral promotion Spotlight Initiative. communities
- Succession Law strategies including the rural
- Revision of the Penal of gender equality in health, places of te country
Code, although some education, higher
articulate remains education, employment and
discriminatory social security, agriculture
- Law to Prevent and and food security, youth
Combat Premature and sports and interior.
Unions; • Office for the
- National Strategy of Advancement of Women /
Basic Social Security of Assistance to Women and
2016-2024; Child Victims of Domestic
67
- The Gender Police; Violence.
- IV National Plan for the
Advancement of However, there is still
Women of 2018 to substantive evidence of
2024; domestic violence and
- Creation of National violence against women in
Plan on Women, Peace the rural area and in the
and Security; National context of COVID-19.
Strategy on Food
Security and Nutrition;
- Labor Law that
advocates for equal
rights between men
and women, in terms of
legal treatment, same
remuneration and
same right to work,
within this law no
woman should be
discriminated;
- Office for Assistance to
Women Victims of
Domestic Violence
were created;
The National Policy on
Gender.
- Created the National
Plan to Combat
Violence against
Women;
African Youth Ratified on Some Provisions of the Same with Youths Charter. Ensure full
Charter 29/07/2008 Youth Charter were implementation of
domesticated within the Youth Charter
Mozambican Constitution Capacity building for
in Article 123. members of NHRC
- Creation of the National and the ombudsman
Youth Counsel to increase
- National Policy of capacities to solve
Youth; and address cases
- Decree n. 40/2009 of human rights
approved to support the violations and better
development of Youths. protect human rights
at national level
African Charter 15/07/1998 The only Articles that More work should be done Despite the low In Mozambique,
on the Rights protects the child are the to make the implementation dissemination and almost half of the
and Welfare of Art 47 and Art 121. These of Children’s Charter a implementation, total population are
the Child principles were placed reality in Mozambique. the ACRWC. children. The
(ACRWC) within the Constitution Progress has been Constitution is
based on the AU Charter. made in considered the main
Please, see the Mozambique. At law of the state. Due
Mozambican Constitution national level to relevance of
of 2018. many laws were these, the
In addition the established to government should
government of protect the increase their efforts
Mozambique created and children’s rights. and capacities to
68
approved the laws below: Recently, the _first implement laws
- Family Law, Law n. Assembly of the already ratified and
22/2019 of 11 Republic approved domesticated.
December, in the Second, in my
substitution of Law n. ‘Law to Prevent understanding the
n. 10/2004, de 25 de and Combat Constitution should
Agosto Premature Unions be amended to clear
- Law n. 12/2004 of 8 in Mozambique’ to protect children as
December on the Civil mitigate and stated in the
Registry Code of 2004 combat Child ACRWC. Some
of, revised by Law. marriages. principles were
12/2018 of 4 placed in the
December; National Plan for
- National Action Plan for Children, Policies
Combat Worst Forms and legislations.
of Child Labor in However, this should
Mozambique of 2017 to be amended to
2022 ; Law of incorporate certain
promotion and principles of ACRWC
protection of children’s within the
rights of 2008, Decree Mozambican
n. 38/2015 that Constitution. For e.g.
provides special there is no section
protection to children’s; that clear protects
Law n. 6/2008 of 15 the right to food and
July, the law was nutrition for children
established to Prevent and other rights
and Combat Trafficking related specific to the
of Persons with focus child. The Right that
on Women and protects children
Children’s from hunger and
malnutrition is in
most of the case
interpreted based on
Article 47. In addition
to this, the
Constitution should
be amended to
protect the rules and
laws placed in the
Charter to ensure the
rights of children in
war and armed
conflicts & same with
IDP’s children as
stated in the AU
Convention.
African Charter 24/04/2018 Few principles were Same with African Charter Implementation is
on Democracy, placed in the on Democracy, Elections needed
Elections and Constitution, Republic and Governance. Very little
Governance Bulletin, Policy and is mentioned at national
legislations level
- Law n. 1/2018 of 12
June on the Punctual
Revision of the
69
Constitution of the
Republic
- Law n. 8 and 9/2014 of
12 March on the
Electoral Juridical
Framework
AU Convention 2/08/2006 Little is said about Anti- The AU Convention on Implementation is
on Preventing Corruption Laws within Corruption should be needed,
and Combating the Mozambican disseminated and make this Amended of
Corruption Constitution Treaty reality to help the Mozambican
- Law n. 6/2004 of 17 CGCC in their daily work. Constitution is
June on the fight to Campaigns about the recommended to
corruption Treaty should be made. accommodate some
- Law n. 16/2012 of 14 crucial principles of
August; AU Convention
- Creation of Central against Corruption
Office for Combating
Corruption through the
approval of law n.
4/2017 of 18 January
that precedes the
amendment of the law
22/2007 at central
level;
- Elaboration od Strategy
Plan to the Central
office for Combating
Corruption for the
period of 2018 to 2222;
- Elaboration of Action
Plan of Strategy of
Reform of Public
Administration;
- Creation of Regulation
to Combate Corruption
in access to work; Law
to combat Corruption;
Decree n. 22/2005 of
22 June that creates
Offices for combating
Corruption in Sofala
and Nampula provinces
& Decree n.18/2010 of
27 May that created the
provincial Office for
combating corruption in
Inhambane.
Following from the above, it is recommended that, project in Mozambique focuses on:

70
b. Supporting the ratification and implementation of the Maputo protocol at the bane of
which are critical human rights that are culturally denied to Mozambican women and
young girls.
3.1.4 Sao Tome and Principe’s experience with Implementation of AU Treaties
The signature, ratification and domestication of treaties by states have direct implications for
the national order since on the one hand, they are integrated into the legal system and become
part of the prevailing legislative collection available to legal practitioners and society in
general. And on the other hand, by virtue of principles such as pacta sunt servanda, the
principle of legality, that of good faith and that of the imperative of jus cogens norms, the
international commitments assumed by the state MUST be fulfilled. Consequently, it is
generally understood that the states that have willingly ratified international treaties are
committed not to obstruct the invocation and claims of rights enshrined in them. In STP’s
experience therefore, taking necessary measures for the implementation of duly ratified AU
treaties is a legal obligation not subject to debate or contestation. As such, the government in
STP’s case is bound to create objective conditions for the promotion, protection and effective
realization of what is established in these instruments. Specifically, the realization, promotion
and protection of the rights and guarantees in AU treaties relating to the rights of women and
welfare of children which read alongside those that foster good governance, eliminate
corruption and promote youth initiatives are critical set-pieces that STP recently committed
itself to, and should therefore be assisted in the design of an implementation plan.
As far as claiming for rights enshrined in treaties is concerned, having established that
ratification and domestication follow each other in a linear process, Article 20 of the STP
constitution entitled: Access to the Courts, stipulates,
“[t] all citizens have the right to appeal to the courts against acts that violate
their rights recognized by the Constitution and the law, and cannot justice to be
denied due to insufficient economic means.”
71
This right of access is further guaranteed in the Basic Law of the Judicial System. This
instrument establishes in Article 7 that
“[all] access to the courts is guaranteed as one of the means of defense of their
legally protected rights and interests, and justice cannot be denied due to
insufficient economic means”
Paragraph 2 of this same article relegates access to the courts to another document in case of
insufficient economic means. So much so, that it is the lawyer's duty to the community, among
others, “[c] to work on access to the law [accepting] unofficial nominations” and “[p] to
protest against human rights violations” (article 56) of the Legal Practice Statute of STP
promulgated in Law n.º 10/2006, 22/12). In this context, the Presidential Decree No. 8/2014,
of 12/29, ratified the Resolution of the National Assembly No. 106/2014, of 12/29, both
instruments published in DR no. 181, of 12/29, which approves the “Agreement on the Benefit
of Free Justice and Full and Free Legal Assistance among Members of the Meeting of Public
Institutions of Legal Assistance in Portuguese Speaking Countries.” This further measure
guarantees access to courts to all citizens and has been supported by other state legislation such
as Law No. 9/2012, of 28/12 on Access to Law and Legal Aid (DR No. 159, of 28/2012) which
stipulates that “no one is hampered or prevented due to their social, cultural or insufficient
economic means, to know, assert or defend their rights”.
In conclusion, having fairly recently ratified all six pilot AU treaties, STP faces a challenge of
implementing these treaties which whilst all remain important, perhaps as a starting point, the
project should consider:
a. supporting implementation of the African Charter on Preventing and
Combating Corruption which threatens to derail the state from its basic service
delivery function
b. Supporting implementation of the African Charter on the Rights and welfare
of the Child because till date, cultural practices that children are exposed to
are at odds with AU treaties.
3.1.5 Senegal’s experience with the implementation of AU Treaties
72
Senegal has made significant strides in raising awareness about AU treaties and hosted a
number of AU-led initiatives which put peace and security; governance, human rights and
development at the forefront of regional and continental conversation. However, like STP and
Mozambique with ethno-religious similarities, the plight of women and young girls could
benefit a boost with advocacy which ends discriminatory practices against women and exploits
the girl-child. At the forefront of ensuring the implementation of the Maputo protocol are
women’s groups such as the Association of Senegalese Jurists (AJS) and the Senegalese
Council of Women (COSEF). These run a number of seminars and workshops on topical issues
bedeviling women and in so doing flag women’s rights which the state has inadvertently
acceded to despite nefarious cultural and religious practices which down-classify women.
By way of examples, in 2001, a collective of women's groups in collaboration with other civil
society stakeholders: COSEF, the Network Siggil Jigeen (RSJ), the AJS, the Civil Forum (FC)
and the Association of African Communication Professionals (APAC) launched a campaign
on equality at the national level with the slogan " Voters are good, elected women are even
better." The advocacy from these women groups culminated in significant changes ahead of
the 2001 parliamentary elections. Ahead of the said elections, political parties reconstituted
their lists in a manner never seen before – For instance, 33% of candidates put forward by
the Sopi Coalition of the Senegalese Democratic Party (PDS) of President Abdoulaye Wade
were women; the Alliance for Progressive Forces known in French as Alliance des forces de
progress of Moustapha Niasse, former Prime Minister had 29% of its candidates being women;
while, Union for Democratic Renewal (URD) of Djibô Leyti Ka listed 30% of women to its
list. PARENA (Party for African Renaissance) fielded more women (64%) than men in its list
while several parties such as the PIT (Party for the Independence of Labor), the Socialist Party
(PS), And-Jëf PADS (African Party for Democracy and Socialism) and the National
Democratic Rally (RND) also made women participation the central effigy of the political
campaign.
In 2005, a national petition was put into circulation to demand equality as a criterion for the
admissibility of electoral lists. A campaign was launched on June 8, 2005 at the Dakar
Chamber of Commerce, under the leadership of Aminata Diaw Cissé, then Secretary General
of COSEF. A sit-in was organized on December 1, 2006 at the National Assembly, to demand
parity in the Electoral Code. Following the request of COSEF, a model law was drawn up by
a team of lawyers made up of Professors Amsatou Sow Sidibé, Ndiaw Diouf, El Hadj Mbodj
73
and Ismaïla Madior Fall. The law was submitted to the former Minister for Women, Aïda
Mbodji .
A decisive step forward in the achievement of COSEF's objectives is the adoption of Law No.
23/2007 introducing equality on the list of candidates for the proportional representation ballot
on March 27, 2007 at the National Assembly. The law on parity was passed on May 28, 2010,
and provided with implementing decree n ° 2011-819 of June 16, 2011. This, together with
other actions taken by the state in furtherance of domestication and implementation is
evidenced in the table below.
Treaty Ratification Domestication status Status of implementation Best practice Areas support is
status needed
1. African Charter on Ratified on 27 1. The Constitution of 22 1. Creation of a National 1. Adoption of a set of 1. Strengthen
Human and Peoples December 2004 January 2001 in its Title 2 Observatory of Places of legislative or other initiatives for the
Rights "Fundamental Rights and Deprivation of Liberty (art. 5 measures for the promotion and
Freedoms and Duties of of the ACHPR). application of the rights economic, social
Citizens" provides, through 2. Establishment of legal aid and freedoms and professional
16 articles, for a set of to support the poor contained in the integration of people
fundamental rights and (protection of the rights of Charter. with disabilities.
freedoms included in the the defence - art. 7 of the 2. Strengthen the
ACHPR. ACHPR). health system for
2. Article 1 of the 3. Establishment of 676 people on low
Senegalese Constitution is mutual health insurance incomes.
based on non- companies in the 552 3. Promote the
discrimination (Art. 2 of the municipalities and 45 popularisation of the
ACHPR). departmental unions of Charter.
3. Creation of Law No. 81- mutual health insurance
77 of 10 December 1981 companies on 31 December
on racial, religious and 2017 (Health law - art 16 of
ethnic non-discrimination. the ACHPR).
4.The Social Orientation 4. Creation of new health
Law No. 2010-15 of 6 July structures by the Ministry of
2010 provides for the Health and Social Action for
establishment of an equal the benefit of people with
opportunities card for disabilities.
people with disabilities
(Art. 18 of the ACHPR).
5. Decree No. 2010-99 of
27 January 2010 provides
for the accessibility of
public and private
establishments for the
disabled.
6. Constitutionalisation of
the right of peoples to "the
free disposal of their
natural wealth and
resources" by Law No.
2016-10 of 5 April 2016
(Art. 21 of the ACHPR).
74
2. Protocol to the Ratified on 27 1. Creation of the National 1. Creation of a parity 1. National launch of a 1. Strengthen
African Charter on December 2004 Observatory for Women's observatory (Art. 9 of the campaign on parity: the initiatives in favour
Human and People’s Rights (ONDF) through MP). Sopi Coalition of the of the enrolment of
Rights on the Rights Decree No. 2008-1047 of 2. Implementation of several Senegalese girls in secondary
of Women in Africa 15 September 2008. social protection policies to Democratic Party education and their
(Maputo Protocol) 2. Elaboration of the strengthen the capacities of (PDS) invested 33% of learning conditions
National Strategy for vulnerable households: women on its lists, AFP (Art. 12 of the PM).
Gender Equality and between 2014 and 2017, (Alliance des forces de 2. Strengthen the
Equity (SNEEG) 2016- 300,000 households progrès) 29%, URD legal protection of
2026 by the Ministry of benefited from the national (Union pour le women regarding
Women, Family, Gender social security grant renouveau their right to
and Child Protection. program, with a budget of 30 démocratique) 30%, marriage
3. Creation of Law No. billion. and PARENA (Parti (acquisition of
2010-11 of 28 May 2010 3. Implementation of United pour la renaissance marriage
instituting parity between Nations Resolution 1325: africaine) 64%. certificates,
men and women in all fully creation of the Women's 2. Vote on the parity inheritance rights,
or partially elective Platform for Peace in law on 28 May 2010. rights of widows).
institutions. Casamance (PFPC) which 4. Promulgation of law 3. Strengthen the
4. Modification of Law No. has 210 women's n°2020-05 rights of elderly,
2008-01 of 8 January 2008 associations and criminalising rape and distressed and
abolishing joint taxation in organizations with a total of paedophilia on 10 disabled women.
the couple and ensuring 25,000 members. January 2020.
the wife's complete fiscal 4. Implementation of the
autonomy (Art. 2 of the Sesame Plan, which
PM). enables people aged 60 and
5. Decree No. 2006- over to receive eligible
515/PR of 9 June 2006 health care in public
gives women the facilities.
possibility of access to the 5. Creation of the national
gendarmerie. unit to combat trafficking in
6. The primatorial circular persons, particularly women
n° 009159 of 26 March and children.
2013 invites the sectoral 6. Establishment of an
ministries to integrate action plan to combat
gender in their gender-based violence.
interventions, the
application of which has
encouraged the
establishment of 22
gender units in the public
administration.
7. Adoption of Law No. 99-
05 of 29 January 1999
prohibiting the practice of
genital mutilation.
3. African Youth Charter Ratified on 17 1. Establishment of the 1. Creation of the National 1. Strong presence and 1. Fighting youth
September 2009 “Fund for Financing Youth Council of Senegal political involvement of unemployment,
Professional and (CNJS), which brings young people: many which is 16.9% in
Technical Training”, together all youth are elected as the fourth quarter of
created by Decree No. associations in Senegal and councillors in local 2019.
2014-1264 of 7 October helps to involve them in the authorities and are 2. Promote the
2014 (art.13 of the AYC). decision-making process. active in political popularisation of the
2. Article 15 of Social 2. Participation of young parties (art. 11 of the Charter.
Orientation Act No. 2010- people in politics, AYC).
15 of 6 July 2010 particularly on issues 2. Promotion of youth
recognises the right of related to democracy and entrepreneurship and
disabled children and the rule of law. self-entrepreneurship
adolescents to free 3. Establishment of through the
education. Adolescent Counselling mobilisation of funding
3. Establishment of the Centres that provide young of 30 billion F CFA by
75
National Agency for Youth people with a medical- the General Delegation
Employment (ANPEJ) by psycho-social service (art for the rapid
Decree No. 2014-29 of 9 16 of the AYC). entrepreneurship of
January 2014. 4. Creation of 45 Youth and women and young
Culture Houses. people (DER/FJ).
5. Establishment of Citizen's
Digital Houses in 45
departments of Senegal,
offering local public
services.
6.Promotion of youth
employment through the
establishment of Higher
Institutes of Vocational
Studies (ISEP) and a
Senegalese Youth
Entrepreneurship
Programme (PSE-J).
7. Establishment of several
mechanisms for poverty
alleviation and socio-
economic integration (art.
14 of the AYC), sustainable
livelihoods and youth
employment (art. 15 of the
AYC).
4. African Charter on the Ratified on 29 1. Law 2004-37 of 15 1. Free care for children 1. Several associations 1. Strengthening the
Rights and Welfare of September 1998 December 2004 aged 0 to 5 years. and NGOs are active in quality of the
the Child guarantees free education. 2. Establishment of the promotion of education system.
2. Law No. 91-22 of 16 normative and institutional children's rights. The 2. Strengthening the
February 1991 on the mechanisms to fight against same applies to human and financial
orientation of national the sale, trafficking, members of local resources of special
education guarantees abduction and begging of communities who raise education
compulsory education for children (art. 29 of the awareness on issues institutions for
children aged 6 to 16 ACRWC), but also sexual related to maternal and children with
years. exploitation (art. 27 of the child mortality. disabilities.
3. Prohibition of the Worst ACRWC), abuse and 3. Strengthen
Forms of Child Labour mistreatment (art. 16 of the advocacy to raise
(WFCL) through the ACRWC). the legal age of
introduction of decree 3. Establishment of marriage for girls to
0003749 of 06 June 2003. assistance and 18 years old.
4. Introduction of Law No. psychosocial support for 4. Develop initiatives
2008-11 of 25 January street children, but also for for the registration of
2008, which punishes child those who are victims of children at birth.
pornography with a abuse, mistreatment and/or 5. Develop
sentence of five to ten exploitation, by the Ministry awareness-raising
years' imprisonment of Women, Family, Gender actions to fight
and/or a fine of 500,000 to and Child Protection. against begging of
15,000,000 CFA. 4. Establishment of a children.
5. Law 2005-06 national unit to fight against 6. Promote the
incriminates and punishes trafficking in persons, popularisation of the
the exploitation of the particularly women and Charter.
begging of others. children.
5. Establishment of external
services by the “Directorate
of Supervised Education
and Social Protection”
(DESPS) of the Ministry of
Justice that receive by
judicial decision minors in
76
danger, victims or in conflict
with the law.
5. African Charter on Not Ratified N/A N/A N/A 1 .Support
Democracy, Elections government efforts
and Governance to ratify the Charter.
2. Promote the
popularisation of the
Charter.
6. AU Convention on Ratified on 12 1. Fight against money 1. Creation of the ARMP 1. Several measures to 1. Promote the
Preventing and April 2007 laundering with the (Autorité de régulation des fight against corruption popularisation of the
Combating creation of the CENTIF marchés publics), which and related offences Convention with the
Corruption (National Financial regulates the system for have been put in place full participation of
Information Processing awarding public contracts by the government. the media and civil
Unit) - Decree No. 2004- and public service society.
1150 of 30 July 2004. delegation agreements. 2. Creating an
2. Adoption of the Code of 2. Senegal joins the EITI enabling
Transparency in Public (Extractive Industries environment that
Financial Management by Transparency Initiative) in enables civil society
Law No. 2012-22 of 27 October 2013. The country and the media to
December 2012. produced six reports bring governments
3. Creation of OFNAC between 2013 and 2019. to demonstrate
(National Office for the 3. Reactivation of the Court maximum
Fight against Fraud and for the Repression of Illicit transparency and
Corruption) by Law No. Enrichment (CREI), which in accountability in the
2012-30 of 19 December 2012 organised an anti- management of
2012. corruption operation called public affairs.
4. Creation of Law No. "Tracing ill-gotten gains".
2014-17 of 02 April 2014
on the declaration of
assets.
5. Creation of the Court of
Auditors by Organic Law
No. 2012-23 of 27
December 2012.
These strides notwithstanding the relegation of women is just one area which is a blind-spot in
Senegal’s democratic journey. More broadly, there is the acute need for similar such projects
to focus on:
b. supporting implementation of the African Charter on Preventing and Combating
Corruption which threatens to derail the state from its basic service delivery function
c. Supporting the ratification and implementation of the African Charter on Democracy,
Elections and Governance (ACDEG) which has gained currency in political circles but
needs to be expanded to youth forums for purposes of expanding the political space and
broadening the circumference of persons who hold governments accountable. This is
77
particularly important for Senegal which has made significant strides consolidating
democratic stability and delivered in key development projects thanks to unrivalled
political will in a turbulent sub-region where election theft and unconstitutional
conservation of power are commonplace.
3.1.6 Tunisia’s experience with the Implementation of AU Treaties
Thus far, of the six pilot treaties, Tunisia has ratified four – namely: the African Charter on
Human and Peoples 'Rights, the Protocol to the African Charter on Human and Peoples'
Rights on the Rights of Women, the African Youth Charter and the African Union Convention
on Preventing and Combating Corruption. This notwithstanding, the harmonization which
should follow ratification has not happened and as such, there is hardly ever any mention of
AU treaties in the Tunisia legal system.
Nonetheless, it seems that this trend can be altered with sufficient advocacy on AU treaties
particularly the Protocol establishing the African Court on Human and Peoples’ Rights which
Tunisia ratified in 2017, individuals can now sue the government before the African court upon
exhaustion of local remedies.
That the African Charter does not make domestication a necessity for access is particularly
encouraging from individuals and civil society organisations that can seek judicial recourse
directly from the continental court should local remedies be unduly delayed or denied. With
this sort of awareness, the Tunisian authorities (including judges) risk by non-observance of
the provisions of these treaties to engage the international responsibility of Tunisia which will
be implemented by the African Court.
In addition, an important caveat worth mentioning is that, pursuant to that Article 20 of

the Tunisian constitution, domestic law is subservient to international treaties. This
inadvertently means that in the event of a conflict of law, citizens can invoke the
unconstitutionality of legislative provisions which contradict international conventions.
After extensive research in the case law in the Tunisian court registry and the Administrative
Tribunal, no reference to AU conventions was found. This shocking revelation which calls for
even greater advocacy was confirmed by with Mr. Hmed Souab ex vice-president of the
administrative tribunal and Ms. Nazek Keda, Vice President of the Court de Cassation,
78
confirmed this finding. After more than thirty-five years in the legal system Mr. Souab and 30
years for Ms. Keda in the judicial system, they opined that in no case had they heard mention
of AU treaties. Although this position was later corrected by Mr. Ahmed Yahyaoui, director of
the Haute École de la Magistrature who opined that several UN initiatives and trainings
changed this conundrum after 2008. Some of these are evidenced in the table below.
Treaty Ratification Domestication Status of Best practice Areas support is

Status status implementation needed
1. African Charter on Ratified Integrated by in the Implementation is done For AU Organs Communication
Human and Tunisian legal system indirectly: respect for the Facilitate between the
Peoples Rights by the Law n° 82-64, majority of the rights accessibility to AU Tunisian Authorities
August 6, 1982 contained in the African treaties and the Commission
Charter which are also Development of AU on Human and
protected by the Tunisian treaty Peoples Rights.
constitution and implementation According to Article
international treaties manuals For the 62 of the Charter,
ratified by Tunisia Tunisian authorities each Member State
Case law makes no The National must submit periodic
mention of AU treaties, Committee for the reports related to the
including the Charter on Harmonization of implementation of
Human and Peoples Legal Texts relating the Charter and the
Rights to Human Rights measures taken to
with the provisions domesticate it.
of the Constitution
and with ratified
international
conventions is a
key player in
accelerating the
domestication of
AU treaties. Judicial
or administrative
justice is a key
player in the
domestication of
AU treaties. A
training cycle for
judges in AU law
should be launched
by the Ministry of
Justice for judicial
judges and the
Presidency of the
Government for
administrative
judges in order to
allow citizens to
fully enjoy their
rights provided for
in the treaties of the
79
AU before the
various courts and
above all to prevent
the responsibility of
the Tunisian State
from being engaged
by the African Court
of Human Rights.
Protocol to the Ratified on Tunisia has an important For AU Organs The issue of
African Charter on August 23, 2018 protective legal system Facilitate inheritance is the
Human and for women’s rights. accessibility to AU only fiend which
People’s Rights on Implementation of the treaties favors men over
the Rights of Protocol should not in Development of AU women in Tunisia
Women in Africa principle pose any treaty (Inspired by Islamic
(Maputo Protocol) particular problems implementation laws, the brother is
manuals For the entitled to double the
Tunisian authorities inheritance
The National compared to his
Committee for the sister). Apart from
Harmonization of this area, there is
Legal Texts relating perfect equality
to Human Rights between men and
with the provisions women in Tunisia
of the Constitution
and with ratified
international
conventions is a
key player in
accelerating the
domestication of
or administrative
justice is a key
player in the
domestication of
AU treaties. A
training cycle for
judges in AU law
should be launched
by the Ministry of
judges and the
Presidency of the
Government for
administrative
judges in order to
allow citizens to
fully enjoy their
rights provided for
AU before the
various courts and
the Tunisian State
80
from being engaged
of Human Rights.
African Youth Ratified Integrated by in the For AU Organs

Charter Tunisian legal system Facilitate
by the Law n° 2010- accessibility to AU
48, October 25, 2010 treaties
Development of AU
treaty
implementation
manuals For the
Tunisian authorities
The National
Committee for the
Harmonization of
Legal Texts relating
to Human Rights
with the provisions
of the Constitution
and with ratified
international
conventions is a
key player in
accelerating the
domestication of
or administrative
justice is a key
player in the
domestication of
AU treaties. A
training cycle for
judges in AU law
should be launched
by the Ministry of
judges and the
Presidency of the
Government for
administrative
judges in order to
allow citizens to
fully enjoy their
rights provided for
AU before the
various courts and
the Tunisian State
from being engaged
of Human Rights.
African Charter on Not Ratified _ _ _ Acceleration of the
81
the Rights and Ratification
Welfare of the
Child
African Charter on Not Ratified _ _ _ Acceleration of the
Democracy, Ratification
Elections and
Governance
AU Convention on Ratified Ratified on February Too soon to evaluate For AU Organs Too soon to evaluate
Preventing and 10th, 2020 Facilitate
Combating accessibility to AU
Corruption treaties
Development of AU
treaty
implementation
manuals For the
Tunisian authorities
The National
Committee for the
Harmonization of
Legal Texts relating
to Human Rights
with the provisions
of the Constitution
and with ratified
international
conventions is a
key player in
accelerating the
domestication of
or administrative
justice is a key
player in the
domestication of
AU treaties. A
training cycle for
judges in AU law
should be launched
by the Ministry of
judges and the
Presidency of the
Government for
administrative
judges in order to
allow citizens to
fully enjoy their
rights provided for
AU before the
various courts and
the Tunisian State
from being engaged
82
of Human Rights.
The above notwithstanding, there remains significant room for more focused and target
advocacy in the areas of:
a. Anti-corruption – supporting implementation of the African Charter on Preventing

and Combating Corruption
b. Maputo Protocol
c. Supporting efforts to ratify, domesticate and implement the African Charter on the
Rights and Welfare of the Child and the African Charter on Democracy, Elections and
Governance (ACDEG).
83
Chapter 4
Understanding State Ratification and Domestication or

Implementation Challenges
The fast-changing international environment coupled with new challenges to peace and
security has prompted state institutions to be cautionary in the adoption or implementation of
policies that open up their democratic spaces or frontiers with other nations. Most AU human
rights, good governance and democracy instruments have a tendency to open up the democratic
space (including amongst others to foreign influence). Amidst experiences of terrorist attacks,
influx of counterfeit goods, leakage of official secrets, in Kenya, one key informant observed
that the country will always seek to protect its interests and government “will not be very
willing” to ratify treaties that threaten it and threaten the security of the nation. Burkina Faso
like, Mozambique and Sao Tome and Principe have ratified all six AU treaties selected for the
UNDP project. So, ratification is not so much a problem as is implementation which is strained
by a cocktail of political, financial, operational challenges.
4.1 Political constraints to Domestication and Implementation of AU challenges

Across the board, the decision on when to ratify, domesticate or implement AU treaties is
neither founded in policy nor practice. It is the express preserve of the government of the day
to ratify and domesticate treaties which advance its cause or political agenda. For instance, in
Burkina Faso, law N° 005-2015 was adopted pursuant to amendment of the law N° 014-2001
which gave effect to the July 3, 2001 electoral code. The amendment sought to justify the
dispensation of exclusions in Article 166 of the said code which barred persons who had been
a part of any unconstitutional change of government. In this instance, the amendment was
carefully designed to disfavor former associates of the former president whose attempt to get a
third term was foiled by protests that led to his stepping down from office. And such a law and
amendment found expression in the African Union Constitutive Act which frowns at
unconstitutional changes of government.
In Kenya as well, the early 1990s decision to liberalise the political space and move from a one
party state was a political decision predicated on the need to be seen to be democratic and
following global trends. It was not a decision that the government willed for the sake of the
people, but it did so to embellish its international image which was crushing under heavy
international scrutiny and condemnation.
Last but not the least, African governments including those that have ratified the Youth Charter
feet-drag the implementation of the charter because of the force of mobilization that youth have
been associated with since the Arab Spring uprisings which swept away a number of stayist
political leaders whose regimes had practically made the pathway of change through the ballot
nearly unimaginable.
In conclusion therefore the fear of political reprisal prompts states to ratify treaties and the
domestication is propelled by what would be gainful to them. The messaging that treaties are
primarily gainful to citizens may be at odds with governments that see citizenry activism as a
threat to their leadership.
4.2 Financial Constraints to Domestication and Implementation of AU challenges

In domestic norm setting as with international relations, power dynamics and interest groups
play critical roles in guiding legislative process of states and governments. Interest group
influence may lead to administrative bribery, political corruption, undue influence and state
capture which inhibit smooth functioning of governance structures and lead to under-table
malperformance which adversely affects the behavior of certain policymakers in governance.
While this is prevalent in literature, the study did not find direct evidence of this in the
countries. Nonetheless, the role of lobbyist groups cannot be discountenanced in understanding
why ratification and domestication remain low in Africa. Certain African countries such as
Uganda and Zimbabwe resisted aid which was conditioned in policies which liberalise and
recognize LGBTs despite domestic legislation which criminalize gay-lesbian sexual relations.
Many states yielded to such conditions and as such, one can only infer that the withholding of
financing for key projects by development partners and others suggests that financial
considerations can sometimes negatively or positively drive states behavior towards treaties.
In the case of Uganda, gay and lesbian relations are criminalized till date and treaties supportive
of such advocacy are simply discountenanced.
The process of treaty making can sometimes be onerous. The reporting requirement which
comes with treaties is often time burdensome to states that do not have sufficient human and
intellectual capital or agency for such demands. In the case of Kenya as well as Mozambique,
the treaty offices are woefully understaffed and the few staff concentrate on responding to
demands of their principles which might be everything but the need to accelerate and
domesticate treaties. Such constraints which the state has or experiences need to be looked into
with the view of offering the requisite support that can dispense of any holds on treaty
domestication and implementation.
To summise, in the global war against corruption, the AU Convention on Preventing and
Combating Corruption (AU Corruption Convention) and the UN Convention against
Corruption (UNCAC) are the main instruments calling for cooperation among the State Parties
in ensuring the effectiveness of measures and actions to prevent, detect, punish and eradicate
corruption. On the inauguration of President Mwai Kibaki’s government in 2002 there was the
promise to the country that corruption would cease to be a way of life in the country. In 2003,
the government demonstrated this commitment through a premier signature and ratification of
UNCAC. Even so, although it did sign the AU Corruption Convention, it failed to ratify it until
five years later, in 2007. Arguably, any benefits that Kenya could have reaped from an early
ratification of the AU treaty were lost during the five years and as often happens with
unchecked corruption, kingpins were able to consolidate their corrupt practices trans-
nationally, a challenge that requires more resources to surmount.
4.3 Operational Challenges to Domestication and Implementation of AU treaties
One key challenge to treaty ratification has been the notion that the treaty may be infringing
on state sovereignty. As such, cultural proclivities have stood as a challenge to several states’
ratification of the Maputo Protocol – most particularly, in deliberations leading to ratification,
concerns over the clause specifying that women and men will enjoy equal rights and are to be
regarded as equal partners in marriage (Article 6) often births feelings which propel patriarchs
to abandon the treaty or its implementation. Quite significantly, the concern that Article 10 (3)
of the Protocol requires State Parties to take the necessary measures to reduce military
expenditure in favour of spending on social development in general, and the promotion of
women in particular. The exact meaning and impact of the term ‘significant’ as used in this
provision was in Kenya deemed to be overreaching on state sovereignty. Mindful of its own
constitutional developments and advancement of the role of women in legislative bodies, it was
unexpected that Kenya would ratify the Protocol, although the ensuing ratification of the
Protocol in October 2010 was with reservations to Article 10(3) and Article 14(2)(c). An
environmental analysis shows that the moment was simply ripe for ratification which was well
within the euphoria of the promulgation of a progressive new constitution – the political, legal
and institutional climate was right. The 2010 Kenyan Constitution is widely considered as a
big gain for women and furthermore, is categorical that, ‘the life of a person begins at
conception and abortion is not permitted unless, in the opinion of a trained health professional,
there is need for emergency treatment, or the life or health of the mother is in danger, or if
permitted by any other written law42 - so much so that, the heat generated by the Protocol’s
opponents around their main rallying point – abortion rights – was decimated and the pressure
from proponent lobby groups gained currency. The old stereotypes on women and gender roles
that the Protocol challenges continue to stand in the way of Kenya as well as Senegal’s and
Mozambique’s realization of women’s human rights, as depicted at least by court judgments43
and discussions in the political space in relation to the constitutional requirement that not more
than two-thirds of the members of elective public bodies are of the same gender. It is possible
that if Kenya has ratified the Maputo Protocol before 2010, a more prescriptive proposal to this
principle might have been contemplated. Comparatively, Kenya had acceded to the Child
Charter in 2000 and COK,2010 has a specific provision on protection from harmful traditional
practices, which is a key continental call in the Child Charter.
The Child Charter was advised by some of the unique positions that African children have
found themselves in as occasioned by armed conflict. A month upon the adoption of the Child
Charter by AU Member States, Kenya ratified the UN Convention on the Rights of the Child
(CRC), but waited ten (10) years to accede to the Child Charter. At the time, the then
Constitution of Kenya did not provide anything specific to children, and statutes had glaring
gaps. As exemplified above, key informants supported the allegation that African States place
greater significance to the UN Conventions than to those under the AU and the 10-year period
of non-ratification of the Child Charter by Kenya is indicative. Sensitisation of the value of
that AU treaties have over UN treaties is needed for Kenya’s state institutions.
As relates to the African Youth Charter, it is worthwhile to increasingly, African governments

of the six countries are yielding to the AU’s call for the constructive involvement of youth in
42 COK, 2010, Article 26

43 Supreme Court of Kenya Advisory Opinion 2 of 2012 [2012] eKLR para 79
the development agenda of Africa and their effective participation in the debates and decision-
making processes in the development of the continent. Kenya’s ratification of the AU Youth
Charter in 2014 and the consequential development of the Kenya Youth Development Policy
was given impetus by the fact that the government considers youth enterprise as a strategic area
of growth for the country—a turning point which needs encouraging.
The African Charter on Democracy, Elections and Governance (ACDEG) is grounded on the
the significance of good governance, popular participation, the rule of law and human rights,
and the need to deepen and consolidate the rule of law, peace, security and development in
African states. Premised on the fact that unconstitutional changes of governments are one of
the essential causes of insecurity, instability and violent conflict in Africa, this Charter seeks
to entrench in the Continent a political culture of change of power based on the holding of
regular, free, fair and transparent elections conducted by competent, independent and impartial
national electoral bodies. The Charter is very progressive in that it is one of the few AU Treaties
that provides for sanctions – in this case, sanctions where there are unconstitutional changes of
government. State Parties commit to promote and deepen democratic governance by
implementing the principles and core values of the New Partnership for Africa’s Development
(NEPAD), Declaration on Democracy, Political, Economic and Corporate Governance and, the
African Peer Review Mechanism (APRM).
Kenya’s signature on ACDEG (28th June 2008) came after the 2007/2008 post-election
violence and spoke of the country’s commitment to sustained constitutionalism and adherence
to the rule of law. Although ACDEG does not form part of the Kenya’s legal system, the
Independent Review Commission (IREC) constituted to inquire into all aspects of the 27
December 2007 elections made reference to it and other international instruments and it was
useful to developing recommendations under that process.44 Following this report, Kenya
overhauled its electoral laws and reconstituted its electoral management body. The
recommendations were instrumental to CoK,2010 provisions in the Bill of Rights, on the
electoral system and processes, the Independent Electoral and Boundaries Commission
(IEBC), delimitation of electoral lists and political parties.
In interrogating the inhibitors to the ratification of the African Charter on Democracy, Elections
44Report of the Independent Review Commission on the General Elections held in Kenya on 27th December 2007. Dated 17 September
2008. Unpublished.
and Governance (ACDEG) by Kenya and what will aid ratification, one key informant
observed that ACDEG’s timing has simply been inopportune for the country. During signature
in June 2008, the country was yet in a tumultuous time. The 2007/2008 post-election violence
had exposed Kenya to the deep-seated weaknesses on the political front and governance
institutions. Following enactment of COK,2010 and various legislation on electoral
management, politically, ACDEG has not been a priority agenda item for the country.
Informants have also indicated that Cabinet has now approved the ratification of ACDEG and
it should be expected that the same will soon be presented to Parliament for approval. However,
having been highlighted as a low priority treaty, amidst Covid-19 and other national interests.
Policymakers at the executive and national assembly should bear in mind that Kenya in not
ratifying ACDEG : (a) losing on its position as an active and key player within the AU – by
ratifying ACDEG, Kenya could offer leadership on the African stage on democratic
governance and rule of law and denounce unconstitutional changes of government, including
military take-over or coups or people circumventing the rule of law; (b) failing the East African
Legislative Assembly (EALA) which in January 2015, made a Resolution that urges the EAC
Council of Ministers to mainstream the ACDEG provisions in the EAC Charter and urged
Parliaments of the Partner States to domesticate ACDEG in Partner States laws and policies;
and, (c) losing the gains that novel provisions in ACDEG on sanctions for unconstitutional
changes of government would give particularly in disputed elections – these include the
instillation of confidence amongst politicians and citizenry that over and above the role of the
judiciary in solving election disputes, the country has at its disposal an additional mechanism
at the continental level, that buttresses constitutionalism, democracy and rule of law and that
safeguards against the collapse of the state. The political environment currently prevailing in
the country centers around the call for a referendum that, if carried will allow the amendment
of COK,2010. Already, some politicians have declared that they will offer their candidature
for presidency in the 2022 general elections and a look at the alignments and party politics
shows that these elections are likely to be very contentious. ACDEG offers some safeguards to
peace and security and it is therefore recommended that MOF endeavours to have ratified well
ahead of elections and preferably before the end of 2021.
Key informants were of the view that the legal and institutional framework that supports the
implementation of ACDEG is already in place. Over and above the CoK,2010 provisions, this
framework includes the Elections Act, 2011, the Election Laws (Amendment) Act, 2016,
Elections Offenses Act, 2016, the Political Parties Act, 2011, and the Independent Electoral
and Boundaries Commission Act, 2011.The Independent Electoral and Boundaries
Commission (IEBC) is already in place as the institutional framework for its implementation.
With IEBC working in partnership with the MFA, OAG&DOJ, for purposes of meeting
reporting obligations, it is unlikely that there will be significant budgetary implications in
ensuring compliance to ACDEG. Nevertheless, research is needed to ascertain any possible
implications and the UNDP AU treaties project could partner with MFA and IEBC to oversee
this research ahead of the tabling of the treaty in Parliament. The UNDP AU treaties project
could support the sensitisation of the National Assembly Committee on Justice and Legal
Affairs on the provisions of the treaty. Upon transmission of ACDEG to the National
Assembly, it will be committed to the Committee on Justice and Legal Affairs. An advance
sensitization of the Committee on the provisions of the Charter will ensure that the Committee
can facilitate focused and fruitful deliberations with stakeholders. The civil society and all
stakeholders on ACDEG should support civic education activities as the conclusion of the
ratification process must entail public participation. To guarantee useful input to the process
the publics should be educated on the treaty. Input should be sought from key stakeholders,
including political parties, but they should be well informed of the Charter provisions ahead of
these consultations. In this regard, civil society organisations could partner with government
to offer the requisite civic education. The MOF should encourage the AU Commission on
International Law (AUCIL) to organize a promotional visit with Kenya, targeting cabinet
secretaries and the Speaker of the National Assembly, for purposes of encouraging the speedy
ratification of ACDEG.
4.4 Impact of ratification and domestication of treaties
As has been emphasized above, the benefits of treaty ratification are far reaching primarily
because upon ratification they automatically become part of a country’s laws and practitioners
can readily invoke them. The study found that, certain legal practitioners question the
superiority of international laws such as treaties over their countries’ constitution and
legislation. The courts opined that, although it is generally expected that the government
through its executive ratifies international instruments in good faith on the behalf of and in the
best interests of citizens, it would not have been that the framers of the Constitution would
have intended that international conventions and treaties should be superior to local legislation
and take precedence over laws enacted by their chosen representatives. With the exception of
international and human rights lawyers, constitutional lawyers and specialist of various aspects
of domestic laws are of the view that, the nature and extent of application of treaties must be
determined on the basis of the subject matter and whether there is domestic legislation dealing
with the specific issue at hand. As such, such perceptions pervade the country and place doubts
in the minds of persons tasked with accelerating treaties as to what treaty to prioritise if they
have to. Such perceptions weaken the position of AU treaties and other international
conventions and unless dispensed with through advocacy and other tools would continue to be
a setback to promoters of AU treaties. As such, academics and research institutions should
research further on this subject. Furthermore, development partners could support this research
and engagements between researchers and the judiciary, as well as supporting public interest
litigations through non-governmental (NGOs).
This notwithstanding, increasingly in almost all petitions to the courts for the enforcement of
the Bill of Rights, the ACHPRs and other AU instruments feature prominently alongside the
UN Bill of Rights. In a judicial interpretation of the rights of intersex persons, the Kenyan High
Court in ‘Baby A’ (Suing through the Mother E A) & another v Attorney General & 6 others
directed the Government to consider developing an appropriate legal framework governing
issues related to intersex children based on internationally acceptable guidelines. Pursuant
to the Ruling in ‘Baby A,’ the Attorney-General constituted the Taskforce on Policy, Legal,
Institutional and Administrative Reforms Regarding Intersex Persons in Kenya. The Taskforce
in its deliberations relied on the following AU instruments: the ACHPR which safeguards all
people against discrimination and sets out the right to equal treatment and protection before
the law for all individuals, and the inviolability of a person’s physical integrity; the Child
Charter that commits Member States to the protection of all children against discrimination,
child abuse and torture, harmful social and cultural practices and sexual exploitation among
others; the African Commission Principles and Guidelines that explicitly recognise intersex
people as a vulnerable and disadvantaged group of people, who face or continue to face
significant impediments to their enjoyment of economic, social and cultural rights; and a panel
discussion ‘Intersex human rights: Challenges and opportunities’ convened in Banjul, the
Gambia on the sidelines of the 61st Ordinary Session of the African Commission on Human
and Peoples’ Rights. As a result of these deliberations far-reaching recommendations were
made that contributed to the enumeration of the intersex people as a special category during
the 2019 national population census. Kenya become the first country in Africa to formally
recognize people who identify their gender as intersex.
In the performance of its tasks and to enhance its efficiency, the ACHPRs makes provision for
the Commission to work with other partners in the field of human rights in Africa. The
Commission has granted observer status to some Kenyan NGOs. NGOs with observer status
have participated directly in the Commission's activities (public sessions of the Commission
and its subsidiary bodies) and further are involved in the preparation of “shadow” reports on
the human rights situation in Kenya, thus keeping government on its toes. Some NGOs have
litigated at the African Commission and the African Court and as a result enhanced the access
to justice by communities and individuals in Kenya. In 2017, the African Court on Human and
Peoples’ Rights (African Court) delivered it’s ruling in the matter of the African Commission
on Human and Peoples’ Rights v Kenya which revolved on the expulsion of the Ogiek people,
a Kenyan hunter-gatherer community, from their ancestral lands in the Mau forest. This
resulted from the fact that the African Commission had not managed to settle the conflict, and
therefore transferred it to the African Court in 2012. The Court widely followed the African
Commission’s application and found that the eviction of the Ogiek without consultation
amounted to several rights violations under the ACHPRs: the right to non-discrimination,
culture, religion, property, natural resources and development. Kenya’s argument that the
eviction was justified by the need to protect the Mau forest was dismissed by the Court. In
2003, the Centre for Minority Rights and Development (CEMIRIDE) took a case to the African
Union Commission on behalf of the Endorois Community involving the displacement of the
Endorois Community, an indigenous people, from their ancestral land, the failure to adequately
compensate them for their loss of property, the disruption of the community's pastoral
enterprise and violations of the right to practice its religion and culture, as well as the overall
process of development of the Endorois people. The Commission found the Republic of Kenya
to be in violation of provisions of the African Charter and made recommendations for
restitution and compensation. The Federation of Women Lawyers, Kenya and International
Center for the Protection of Human Rights represented Priscilla Njeri Echaria in a case against
Kenya filed in September 2009. The prayers were that the African Commission would find
Kenya in violation of ACHPRs and recommend that she enacts legislation aimed at effecting
the property rights of married women before a specific time. The African Commission was
satisfied that a prima facie case existed as the matter hinged on the interpretation and
application of particular provisions of the African Charter with regards to the Victim’s case,
and it could determine without the necessity to require a systematic pattern of violations. The
case was however determined on the Commission’s finding that the complainants had failed to
explain the wide interval between exhaustion of local remedies and the Communication to the
African Commission. These cases have been impactful. Although the Government is yet to
implement the Ogiek judgement, the decisions of the African Commission, have time and again
been referenced by the national courts and have contributed to legal and policy changes.
The AU treaties have contributed to EAC’s concerted efforts in transnational crimes. Drug
trafficking, trafficking of persons, human smuggling, insurgencies and terrorism, corruption,
smuggling of weapons and other commodities, and cybercrimes, are some of the crimes that
traverse boundaries and which need a concerted effort by states. The AU Corruption
Convention, has provisions requiring State Parties to provide each other with cooperation and
assistance to prevent, detect, investigate and punish for corruption and related offences. The
Child Charter requires State Parties to take appropriate measures to prevent the abduction, sale
of, or trafficking of children for any purpose or in any form, by any person including parents
or legal guardians of the child. In the East African region, EALA passed The East African
Community Counter Trafficking in Persons Bill, 2016. The Act provides a legal framework at
the EAC level to prevent the counter-trafficking in persons, paying particular attention to
women and children, and vulnerable members of the society. It calls for the protection and
assistance of victims of trafficking in persons in a manner that respects their human rights, and,
the promotion of cooperation and harmonized action among the Partner States in order to
prosecute perpetrators and comprehensively counter trafficking in persons. In deliberating the
Bill EALA referenced the Maputo Protocol whose Article 2 (4) (g) calls on Member States to
prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and
protect those women most at risk.45
An additional impact to AU treaties and other international conventions is the progressive

change of Kenya’s human rights approach to governance. The over two-decade reform process
in Kenya has seen matters of human rights come to the fore. The Human Rights Approach cuts
across the entire COK,2010. Over and above the progressive provisions in the Bill of Rights,
entitlements for the citizenry are reinforced in Chapters on citizenship, land and environment,
representation of the people, commissions and independent offices and others. The devolved
structure of government rides on the need that all citizens should access services from
45The Official Report of the Proceedings of the East African Legislative Assembly 149th Sitting – Third Assembly: Second Meeting – Fifth
Session, Tuesday, 18 October 2016
Government. Through recognition of the rights of communities to manage their own affairs
and further their development, devolution works towards the equitable share of national and
local resources throughout the country. The framework addresses historical injustices and puts
in place mechanisms that enable citizens to access justice. The Human Rights Approach is
buttressed in the National Policy and Action Plan on Human Rights in which the Government
makes a firm commitment to human rights as embodied in CoK,2010 and international and
regional human rights instruments that Kenya is a state party, and further commits to a strict
accountability for the implementation of human rights. The implementation process is clear
and is a collaborative effort between the Government Ministries, Departments and Agencies,
civil society, private sector, academic institutions and all other stakeholders. It includes the
formation of focal points in Government Ministries, Departments and Agencies – Human
Rights Units. Constitutional Commissions in particular KNHRC, NGEC and CAJ are expected
to carry out their mandates under their respective Acts to monitor and evaluate the
implementation of this policy. To this they continuously advise on suitable human rights
indicators. Human rights indicators help gauge the human rights impact of government
programmes as well as the degree to which the processes used adhere to human rights
principles. Because a stable budgetary support is needed in the enforcement of human rights,
Government is to ensure that resources are mobilized in its budgetary plans to support the
mainstreaming of human rights in planning and budgetary process in the various Government
Ministries, Departments and Agencies. Every Ministry and Agency is required to provide for
human rights realization in its budgets so that adequate resources are provided for the
implementation of specific projects aimed at promoting human rights. In as much as
Government continues enlisting the support of its development partners in the implementation
of human rights initiatives, it has committed to providing the bulk of the budgetary support.
Moreover, it recognizes the role of non-governmental organizations in human rights
promotion. A few CSOs have developed clear engagement strategies that encompass
programmes and projects that contribute to Kenya’s compliance to AU and other international
treaty obligations. More CSOs need to be involved and more funding for programmes for
litigating human rights is needed. Some CSOs also have oversight programmes aimed at
ensuring that sector issues get government budgetary allocations (for example, gender
responsive budgeting), programmes that enable lobbying and advocacy, and programmes that
contribute to the capacity building of officials in state departments, among others. With
additional support the involvement of CSOs in AU treaties projects could contribute to Kenya’s
ratification process and implementation of AU treaties.
Chapter 5
Conclusion and Policy Recommendations

The African Union has formulated treaties and policies that provide the framework for
implementing international conventions and advancing Africa’s development agenda. In fact,
the AU has been praised world over for formulating comprehensive legal instruments and
policy frameworks that speak to the very aspirations of the African citizen. As such, they would
have tremendous impact on the lives of Africans if their provisions are fully implemented by
AU member states and governments. But the enthusiasm with which the Heads of State and
Government sign and ratify these instruments does not match performance at the national level.
On the whole, domestication and implementation is still very low.
Major areas of slow progress are in the Charter on Democracy and Elections, the Protocol to
the African Charter of Human and Peoples’ Rights on the Rights of Women, the Convention
on the Rights and Welfare of the Child, and the Maputo Plan of Action. Indeed, there is need
for fresh thinking on how to strengthen democracy and women and children’s rights. There still
remains a glaring gap between universal values and the negative cultural practices in these three
areas around the continent: The acceptance of child marriages across the board in the countries
is clear testimony to this.
The AU has formulated many policies which, if fully implemented, can lift the continent
out of conflict, poverty, ignorance and disease. While there is need for more policies and
treaties, it may be helpful to seek the implementation of those already in place before producing
new ones.
General factors inhibiting implementation
This study found that, some of the factors that inhibit implementation of AU legal instruments
and policy frameworks include:
1. Limited levels of popular participation.

2. Shrinking space for CSOs – they speak but their voices do not translate to policy.
3. Unclear responsibilities between parliaments and the executive in some countries.
95
Where Cabinet ministers are at the same time Members of Parliament, the legislature cannot
push the executive to effectively take action.
4. Lack of verifiable reliable statistics and information for policy formulation, learning and
implementation.
5. Limited capacity for data and information processing especially at local level.
6. Low capacity for formulation and drafting of policy into laws.
7. Low capacity for monitoring and evaluating policies. It is, thus, not easy to establish
whether policies are working or not.
8. Most societies are patriarchal and women representation in decision working is still low
and gender inequality persists.
Policy recommendations
In order to strengthen and hasten compliance with AU instruments, the following policy actions
and strategies need to be considered and given attention:
1. AU member states should establish stable and consultative mechanisms for

monitoring compliance to AU instruments. There have been mechanisms in place before,
some interstate – e.g. Africa Peer Review Mechanism (APRM) - while a majority are civil
society-led. The latter, while well designed, have not yielded the expected results, partly
because they are not state-led and as such their structures are not owned by respective
governments. One way would be to assess existing state-led monitoring mechanisms of best
practice both within and outside the AU and Africa in order to establish their contribution to
evidence-based policy making; analyse their applicability in monitoring compliance, and from
the lessons develop new mechanisms that will be effective in tracking compliance with the
requirements of AU instruments.
2. There is also a need for improved policy coordination among government arms and
agencies that are charged with implementing policies formulated at the AU. The executive
could, for instance, play a more proactive role in clarifying key concepts before forwarding
Bills to the legislature for their domestication into national law.
3. The AU and its member states should encourage citizens’ opinions on the state of
96
governance in their respective countries and communities. They should do so by investing in
the popularisation of AU instruments among the African citizenry. This should be a multi-
stakeholder task shared between the government, private sector, and the civil society (including
the media). The institutional framework for implementation should have a civic education
component that educates the public on the content and benefits of complying with the signed
instruments.
4. The AU, member states, CSOs, private sector, and other stakeholders should also invest
in research and develop a broad consensus on the key components and indicators of good
governance in a consultative manner.
5. AU member states should commit to increase the autonomy of electoral commissions

and give them resources, security and accessibility of opposition parties.
6. Establishing quality institutional frameworks at the national level for realising policy
objectives of AU instruments is important. But this is not sufficient: Institutions need to be
empowered (have ‘teeth’) to design, formulate, and implement policies that fulfil these
objectives. This empowerment should include the ability to sanction or prosecute actions that
contravene set policy courses. Governments should also complement the existing institutions
with laws that are not open to self-serving interpretations and collusion, but laws that are
elaborate, stable, and backed by the national constitutions. The stronger the anti-corruption
laws and institutions, for instance, the lower the levels of corruption.
7. Governments should incorporate AU instruments obligations into their constitutions,

backed by - and not contrary to or separate from ‘- independent national legislation. National
law should be seamlessly applied in relation to the already ratified AU instruments. A
country’s extradition laws should, for instance, allow extradition for offences of universal
jurisdiction under international treaties and conventions (e.g. AU Convention on the Fight
Against Corruption) ratified by that country.
8. Enact laws that will ensure women empowerment and inclusive political
participation and representation in order to address conflicts and crises, as well as ensure
97
democracy. Policy and legal commitments are required. Further, resources should be mobilised
to strengthen the gender equality and inclusion
9. AU member states should harness innovation, which has the potential to increase
skill formation, enhance productivity, and create youth employment opportunities. They
should also build institutional quality so that individuals and organisations are effective in
responding to the needs of the youth.
Presented per constituency involved in treaty making,

To the AU, African Union Commission Office of the Legal Counsel and Treaty bodies
- Should focus its treaty attention on subject areas addressing ways in which the AU and
its organs can act as agents of change or reform.
- Undertake an audit of all OAU/AU treaties, with the aim of identifying treaties that
require targeted advocacy and ratification campaigns to maximise their ratification.
- Identify the policy context to ensure that before a draft text is laid before the AU
Assembly for adoption, debates at both the formal and informal levels have taken place,
including consultations with relevant sub-regional organisations, relevant NGOs and other
institutions and entities in both the private and public sectors.
- Request periodically those member states that have not ratified certain OAU/AU
treaties to forward relevant information about the circumstances which have prevented or
delayed their acceptance or ratification of those treaties.
- Build synergy with the Regional Economic Communities on elaboration and
ratification of treaties.
- Sensitisation of state institutions, and not only government, on the value of OAU/AU
treaties.
- Identify resources to provide technical assistance to Member States facing obscure
challenges to the ratification or domestication of certain treaties.
- Develop and disseminate manuals on the implementation of OAU/AU treaties.
- Encourage and support research and outreach activities on AU legal instruments.
To development partners including United Nations and its agencies
- Encourage and support research and outreach activities on AU legal instruments.
98
- Support improved awareness of the OAU/AU treaties for the purpose increasing
capacities of the citizens and civil society to marshal support for speedy ratification of treaties.
- Support member states to ratify, domesticate and implement the treaties
To African States
- Should develop national policies and strategies to address the obstacles that stand in the
way of expeditious ratification of the treaties they have signed up to.
- Review on a continuous and periodic basis, the factors delaying or preventing their
ratification of those treaties that they have signed as well as their accession to treaties already
in force.
- Initiate national dialogue with relevant domestic stakeholders, including political
leaders, parliamentarians, and civil society in general, to sensitise them to the significance of
particular OAU/AU treaties and the importance of ratifying them as part of each individual
nation’s commitment to join with other member states in advancing the policy goals adopted
collectively under the aegis of the organisation.
- Improve coordination between the different actors involved in the treaty ratification
process.
- Familiarise staff and judicial actors (magistrates, lawyers, etc.) with the OAU/AU
treaties so that they can rely on these instruments in their work. This will be achieved through
the establishment and/or enhancement of courses in international law, and specifically AU law,
in universities and training schools for the judiciary.
To African Civil Society and Civil Society Organisations
- Become familiar with the OAU/AU treaties in order to popularise them among citizens.
- Develop more strategic interventions on AU treaties in order there are tangible outputs.
- Develop media programs that popularize OAU/AU treaties and highlight the salient
features of those treaties.
99
Bibliography
Committee of Legal Advisers on Public International Law (CAHDI). (2001). Expression of

Consent by States to be Bound by a Treaty: Analytical Report and Country Reports.
Secretariat memorandum Prepared by the Directorate General of Legal Affairs –
CAHDI.
Constitution of Kenya 2010
Malcom Shaw (1997). International Law. 4th edition, Cambridge University Press:
Melbourne.
Maluwa, Tiyanjana (2012). Ratification of African Union Treaties by Member States: Law,
Policy and Practice. Journal of International Law, 636.
MATHE, Cláudio (2020). Jurista e Funcionário da Direcção dos Assuntos Jurídicos e

Consulares do Ministério dos Negócios Estrangeiros e Cooperação da República de
Moçambique – MINEC. Entrevistado no dia 14 de Agosto de 2020. Maputo.
Nakhjavanii, Salim A (2010). Rules for our country, rules for our world: Prospects for
enhancing Parliamentary oversight of treaty-making and implementation in South
Africa. A briefing paper prepared at the request of the Portfolio Committee on
International Relations and Cooperation
Stanford Law School & American University of Iraq (2016). Public International Law:
Treaties and International Organizations Pub. Available at:
https://law.stanford.edu/wp-content/uploads/2018/04/ILEI-Treaties-and-Intl-Orgs-
2016.pdf
Sheirer I.A. (1994). Starke’s International Law. 11th edition, London: Butterworths
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations,
Treaty Series, vol. 1155, p. 331, available at:
https://www.refworld.org/docid/3ae6b3a10.html [accessed 28 August 2020]
Weiss, Edith Brown (editor). (1992). Environmental change and international law: New
challenges and dimensions. United Nations University Press: Tokyo, Japan.
100
Appendixes
4.5 Questionnaire/Sample Survey Used for Data Collection46
English Arabic
Introduction… …‫المقدمة‬
Dear Sir/Madam: ‫ سيدي العزيز‬،‫سيدتي العزيزة‬
You are hereby invited to participate in this online survey ‫نحن ندعوك للمشاركة في هذا االستطالع عبر اإلنترنت والذي يحمل عنوان‬
titled “Accelerating, Ratifying and Domesticating African ‫"تسريع التصديق على معاهدات االتحاد األفريقي وإدماجها" والذي يديره‬
Union Treaties” which is being conducted by the UNDP ‫ ويديرهذا‬.‫مركز الخدمات اإلقليمي لبرنامج األمم المتحدة اإلنمائي ألفريقيا‬
Regional Service Centre for Africa and led by Charles ‫االستطالع المستشار الدولي تشارلز نيويكونج‬
Nyuykonge the International Consultant ‫ يُجرى هذا المسح في كل من كينيا‬.)nyuykonge@gmail.com(
(nyuykonge@gmail.com). This survey is being conducted ‫وموزمبيق وتونس وبوركينا فاسو وساوتومي وبرينسيبي والسنغال ومع‬
in Kenya, Mozambique, Tunisia, Burkina Faso, Sao Tome ‫ لقد تم اختيارك للمشاركة‬.‫شركاء التنمية ومفوضية االتحاد االفريقي في إثيوبيا‬
and Principe and Senegal and with development partners .‫في هذا االستبيان بسبب معرفتك وخبرتك وفهمك للمعاهدات في بلدك‬
and AUC in Ethiopia. You have been selected to take part
in this survey because of your knowledge, experience and ‫الهدف من هذا االستطالع هو تقييم مستويات التصديق على معاهدات االتحاد‬
understanding of treaties in your country. :‫األفريقي الست التالية وإدماجها محليا‬
1981 ‫ تم تبنيه عام‬،‫• الميثاق األفريقي لحقوق اإلنسان والشعوب‬
The purpose of this survey is to assess the levels and extent ‫• بروتوكول الميثاق األفريقي لحقوق اإلنسان والشعوب بشأن حقوق المرأة في‬
of ratification and domestication of the following six 2003 ‫ المعتمد في عام‬،)‫أفريقيا (بروتوكول مابوتو‬
African Union Treaties: 2006 ‫• ميثاق الشباب األفريقي المعتمد عام‬
• African Charter on Human and People’s Rights, 1990 ‫ اعتمد في عام‬،‫• الميثاق األفريقي لحقوق ورفاهية الطفل‬
adopted in 1981 2007 ‫ المعتمد عام‬،‫• الميثاق األفريقي للديمقراطية واالنتخابات والحكم‬
• Protocol to the African Charter on Human and 2003 ‫ المعتمدة في عام‬،‫• اتفاقية االتحاد األفريقي لمنع الفساد ومكافحته‬
People’s Rights on the Rights of Women in Africa (Maputo
Protocol), adopted in 2003 ‫ برنامج‬،‫هذا االستطالع سيساعد مكتب المستشار القانوني لالتحاد األفريقي‬
• African Youth Charter, adopted in 2006 ‫األمم المتحدة اإلنمائي وشركاء التنمية اآلخرين على وضع استراتيجيات‬
• African Charter on the Rights and Welfare of the .‫وتوصيات مناسبة إلدماج معاهدات االتحاد األفريقي محليا وتفعيلها‬
Child adopted in 1990
• African Charter on Democracy, Elections and .‫المشاركة في هذا االستطالع طوعية ويمكنك رفض اإلجابة على أي سؤال‬
Governance, adopted in 2007 ‫ تبقى المعلومات‬.‫لديك أيضًا الحق في االنسحاب من المشاركة في أي وقت‬
• AU Convention on Preventing and Combating ‫ للحفاظ على سرية‬.‫التي يتم جمعها سرية وتستخدم فقط ألغراض هذه الدراسة‬
Corruption, adopted in 2003 ‫ سيستغرق إكمال هذا االستبيان ما‬.‫أمرا اختياريًا‬
ً ‫ يعد ذكر اسمك‬،‫المعلومات‬
‫ فال‬،‫ إذا كانت لديك أسئلة أخرى حول هذا االستبيان‬.‫ دقائق‬10 ‫ إلى‬5 ‫بين‬
The survey will help the African Union Office the Legal ‫تتردد في االتصال بالمستشار الدولي على عنوان البريد اإللكتروني المذكور‬
Counsel (OLC) the UNDP and other Development Partners .‫أعاله‬
to elaborate appropriate strategies and recommendations for ."‫ يرجى الضغط على "متابعة‬،‫إذا وافقت على المشاركة‬
the effective domestication and implementation of the AU !‫شكرا‬
treaties.
Participation in this survey is voluntary and you may

decline to answer any question. You also have the right to
withdraw from participation at any time. The information
collected will be confidential and used only for the
purposes of this study. To keep information confidential,
stating your name is optional. We estimate that it will take
between 5- 10 minutes of your time to complete the
questionnaire. If you have further questions on this survey,
feel free to contact the International Consultant at the
46Please note that the survey was deployed in English, French, Portuguese and Arabic which are the 4 official languages of the African
Union
101
above-mentioned email address.
If you agree to participate please press continue.
Thank you.
Continue to survey questionnaire?

Demographic Data ‫البيانات الديموغرافية‬
What is your name? (Optional) )‫ما اسمك؟ (اختياري‬
Gender ‫الجنس‬
• Male ‫• ذكر‬
• Female ‫• أنثى‬
• Prefer not to say ‫• أفضل عدم القول‬
Age ‫العمر‬
• 18 – 30 years ‫ سنة‬30 - 18 •
• 31 – 40 years ‫ سنة‬40 - 31 •
• 41 – 50 years ‫ سنة‬50 - 41 •
• 51 – 60 years ‫ سنة‬60 - 51 •
• 61+ years ‫ سنة‬61+ •
Country ‫البلد‬
• Kenya ‫• كينيا‬
• Senegal ‫• السنغال‬
• Mozambique ‫• موزمبيق‬
• Sao Tome and Principe ‫• ساو تومي وبرينسيبي‬
• Tunisia ‫• تونس‬
• Burkina Faso ‫• بوركينا فاسو‬
)‫• إثيوبيا (مفوضية االتحاد االفريقي‬
• Ethiopia (AUC)
)‫• إثيوبيا (برنامج األمم المتحدة اإلنمائي‬
• Ethiopia (UNDP)
What organisation do you work for? ‫ما هي المنظمة التي تعمل من أجلها؟‬
• Government (Judiciary) )‫• الحكومة (السلطة القضائية‬
• Government (Legislature) )‫• الحكومة (السلطة التشريعية‬
• Government (Executive) )‫• الحكومة (السلطة التنفيذية‬
• Regional Economic Commissions (RECs) )RECs( ‫• اللجان االقتصادية اإلقليمية‬
• Development Partner ‫• شركاء التنمية‬
‫• الهيئات الدستورية‬
• Constitutional Bodies
)CSOs( ‫• منظمات المجتمع المدني‬
• Civil Society Organisation (CSOs)
)‫• أخرى (حدد‬
• Other (Specify)
(Specify Other) What organisation do you work for? ‫(أخرى) ما هي المنظمة التي تعمل فيها؟‬
Knowledge of the 6 treaties ‫المعرفة بالمعاهدات الست‬
In this section, we are going to ask you about your ‫ تتركز األسئلة حول معرفتك بالمعاهدات الست‬،‫في هذا القسم‬
knowledge of the 6 treaties
Which of these treaties are you familiar with? (Select all )‫أي من هذه المعاهدات تعرفها؟ (حدد كل ما ينطبق‬
that applies) 1981 ‫ تم تبنيه عام‬،‫• الميثاق األفريقي لحقوق اإلنسان والشعوب‬
• African Charter on Human and People’s Rights, ‫• بروتوكول الميثاق األفريقي لحقوق اإلنسان والشعوب بشأن حقوق المرأة في‬
adopted in 1981 2003 ‫ المعتمد في عام‬،)‫أفريقيا (بروتوكول مابوتو‬
• Protocol to the African Charter on Human and 2006 ‫• ميثاق الشباب األفريقي المعتمد عام‬
People’s Rights on the Rights of Women in Africa 1990 ‫ اعتمد في عام‬،‫• الميثاق األفريقي لحقوق ورفاهية الطفل‬
(Maputo Protocol), adopted in 2003 2007 ‫• الميثاق األفريقي للديمقراطية واالنتخابات والحكم الصادر عام‬
• African Youth Charter, adopted in 2006 2003 ‫ المعتمدة في عام‬،‫• اتفاقية االتحاد األفريقي لمنع الفساد ومكافحته‬
• African Charter on the Rights and Welfare of the
Child, adopted in 1990
• African Charter on Democracy, Elections and
Governance, adopted in 2007
• AU Convention on Preventing and Combating
Corruption, adopted in 2003
What benefits are there for countries to sign, ratify and ‫ما الفوائد التي تعود على البلدان من توقيع المعاهدات والتصديق عليها‬
domesticate treaties in general? (Select all that applies) )‫وإدماجها بشكل عام؟ (حدد كل ما ينطبق‬
102
• Broaden the rights of their citizens ‫• توسيع حقوق مواطنيها‬
• Promote regional & continental integration ‫• تعزيز التكامل اإلقليمي والقاري‬
• Promote African Best Practices ‫• تعزيز أفضل الممارسات األفريقية‬
• Gain Foreign Aid and Trade ‫• المساعدات الخارجية والمكاسب التجارية‬
• Other (Explain) )‫• أخرى (حدد‬
(Explain Other) Benefits for countries to sign, ratify and ‫(وضح غير ذلك) الفوائد التي تعود على الدول للتوقيع والتصديق عليها‬
domesticate treaties ‫وإضفاء الطابع المحلي على المعاهدات‬
In your opinion, have the following treaties been ratified ‫ هل تم التصديق على المعاهدات التالية في بلدك؟‬،‫برأيك‬
domesticated in your country?
African Charter on Human and People’s Rights, adopted in 1981 ‫ تم تبنيه عام‬،‫الميثاق األفريقي لحقوق اإلنسان والشعوب‬
1981 ‫• نعم‬
• Yes ‫• ال‬
• No )‫• غير متأكد (ة‬
• Somehow (does it mean here: I am not sure?)
Somehow = In some way
Protocol to the African Charter on Human and People’s ‫بروتوكول الميثاق األفريقي لحقوق اإلنسان والشعوب بشأن حقوق المرأة في‬
Rights on the Rights of Women in Africa (Maputo 2003 ‫ المعتمد في عام‬،)‫أفريقيا (بروتوكول مابوتو‬
Protocol), adopted in 2003 ‫• نعم‬
• Somehow
African Youth Charter, adopted in 2006 2006 ‫ اعتمد في‬،‫ميثاق الشباب األفريقي‬
• Yes ‫• نعم‬
• No ‫• ال‬
• Somehow )‫• غير متأكد (ة‬
African Charter on the Rights and Welfare of the Child, 1990 ‫ اعتمد في عام‬،‫الميثاق األفريقي لحقوق ورفاهية الطفل‬
adopted in 1990 ‫• نعم‬
• Somehow
African Charter on Democracy, Elections and Governance, 2007 ‫ المعتمد في عام‬،‫الميثاق األفريقي للديمقراطية واالنتخابات والحكم‬
• Somehow
AU Convention on Preventing and Combating Corruption, 2003 ‫ المعتمدة في عام‬،‫اتفاقية االتحاد األفريقي لمنع الفساد ومكافحته‬
• Somehow
In your observation, why are AU member states inclined ‫ لماذا تميل الدول األعضاء في االتحاد األفريقي نحو التصديق‬،‫حسب رأيك‬
towards ratifying some treaties (international/UN) and not ‫ األمم المتحدة) وليس معاهدات االتحاد‬/ ‫على بعض المعاهدات (الدولية‬
AU treaties? ‫األفريقي؟‬
• Ratification as a condition of Aid ‫• التصديق كشرط للمساعدة‬
• Deterrence from sanctions ‫• الردع عن العقوبات‬
• Beneficial to the member ‫• يعود بالنفع على الدولة العضو‬
• Greater awareness to ratify those instruments ‫• زيادة الوعي بالتصديق على وثائق المعاهدات‬
• Public relations – the look good effect ‫• التأثير الجيد في العالقات العامة‬
• Other (Explain) )‫• أخرى (حدد‬
(Explain Other) Why are AU member states inclined ‫(وضح غير ذلك) لماذا تميل الدول األعضاء في االتحاد اإلفريقي إلى التصديق‬
towards ratifying some treaties (international/UN) and not ‫ األمم المتحدة) وليس معاهدات االتحاد‬/ ‫على بعض المعاهدات (الدولية‬
AU treaties? ‫اإلفريقي؟‬
Challenges and opportunities for treaty ratification and ‫التحديات والفرص المتاحة للتصديق على المعاهدة وإدماجها على المستوى‬
domestication ‫المحلي‬
In this section, we are going to ask you about challenges ‫ تتركز األسئلة حول التحديات والفرص المتاحة للتصديق على‬،‫في هذا القسم‬
and opportunities for treaty ratification and domestication ‫المعاهدة وإدماجها على المستوى المحلي في بلدك‬
in your country
In your experience, what have been the challenges in your ‫ ما هي التحديات في بلدك إلدماج المعاهدات الست؟ (حدد كل ما‬،‫في تجربتك‬
103
country to domesticate the 6 treaties? (Select all that )‫ينطبق‬
applies) ‫• االفتقار إلى االرادة السياسية‬
• Lack of political goodwill ‫• المسائل التي يغطيها القانون والتشريعات الوطنية‬
• Issues already covered in national legislation ‫• قلة المعرفة بالمعاهدات وأهميتها‬
• Lack of knowledge about treaties and their ‫• االفتقار إلى القدرات الكافية للتصديق واالدماج‬
benefits )‫• أخرى (حدد‬
• Lack of adequate capacity for ratification and
domestication
• Other (Explain)
(Explain Other) What have been the challenges in your ‫(وضح غير ذلك) ما هي التحديات في بلدك إلدماج المعاهدات الست‬
country to domesticate the 6 treaties
In your perspective, what has been the cause/driver of these ‫ دافع هذه التحديات في بلدك؟‬/ ‫ ما هو سبب‬،‫من وجهة نظرك‬
challenges in your country? ‫• االفتقار إلى االرادة السياسية‬
• Lack of political goodwill ‫• عدم وجود معارضة قوية ومنظمات المجتمع المدني النشطة‬
• Lack of strong opposition and active CSOs ‫• الجهل بأهمية المعاهدات‬
• Ignorance of the benefits )‫• أخرى (حدد‬
• Other (Explain)
(Explain Other) Cause/driver of these challenges of ‫ دافع هذه التحديات المتمثلة في ادماج المعاهدات‬/ ‫(اشرح غير ذلك) سبب‬
domestication the 6 treaties in your country? ‫الست في بلدك؟‬
What opportunities/incentives are there to encourage your ‫ الحوافز المتوفرة لتشجيع بلدك على التصديق على المعاهدات‬/ ‫ما هي الفرص‬
country to ratify and domesticate treaties? (Select all that )‫وإضفاء الطابع المحلي عليها؟ (حدد كل ما ينطبق‬
applies) ‫• القدرة على فهم وأدراك االلتزام بحقوق اإلنسان‬
• Perception of commitment to human rights ‫ تخفيف العقوبات‬/ ‫• كسب المساعدات الخارجية‬
• Attraction of Foreign Aid/sanction relief ‫• تصنيف وطني جيد وشعبية لدى الناخبين‬
• Good national rating and popularity with electorate )‫• أخرى (حدد‬
• Other (Explain)
(Explain Other) What opportunities/incentives are there to ‫ الحوافز المتوفرة لتشجيع بلدك على‬/ ‫(وضح غير ذلك) ما هي الفرص‬
encourage your country to ratify and domesticate treaties? ‫التصديق على المعاهدات وإدماجها على المستوى المحلي؟‬
Impact of treaty ratification and domestication ‫أثر التصديق على المعاهدة وإدماجها محليا‬
In this section, we are to ask you about the impact of treaty ‫ تتركز األسئلة حول تأثير التصديق على المعاهدة وإدماجها‬،‫في هذا القسم‬
ratification and domestication ‫محليا‬
What has been the impact of ratifying and domesticating ‫ما هو تأثير المصادقة على المعاهدات وادماجها محليا؟‬
treaties? ‫• تدعيم الحوكمة والشفافية والمساءلة‬
• Improved governance, transparency and ‫• تخفيف العقوبات الدولية أو المزيد من االستثمار األجنبي المباشر‬
accountability ‫• تصنيف وطني جيد وشعبية لدى الناخبين‬
• Sanction relief or more Foreign Direct Investment )‫• أخرى (حدد‬
• Good national rating and popularity with electorate
• Other (Explain)
(Explain Other) What has been the impact of ratifying and ‫(وضح غير ذلك) ما هو تأثير التصديق على المعاهدات وادماجها؟‬
domesticating treaties?
Who has felt the most impact in your opinion? ‫تأثيرا في رأيك؟‬
ً ‫من كان األكثر‬
• Government ‫• الحكومة‬
• Citizens ‫• المواطنين‬
• Development Partners ‫• شركاء التنمية‬
• RECs ‫• المجموعات االقتصادية اإلقليمية‬
• No one ‫• ال أحد‬
Are citizens able to hold governments accountable based on ‫هل المواطنون قادرون على مساءلة الحكومات على أساس التزاماتها بموجب‬
their treaty commitments? ‫المعاهدة؟‬
• No ‫• ال‬
• To some extent (Please explain further) )‫• إلى حد ما (يرجى التوضيح أكثر‬
(Explain Further) Are citizens able to hold governments ‫(وضح المزيد) هل المواطنون قادرون على مساءلة الحكومات بنا ًء على‬
accountable based on their treaty commitments? ‫التزاماتها بموجب المعاهدة؟‬
Do judges draw inspiration from treaties or base their ratio ‫هل يستلهم القضاة من المعاهدات أم يبنون نسبهم إلى المعاهدات التي صادقت‬
descedendi on treaties duly ratified by the government? ‫عليها الحكومة حسب األصول؟‬
(Ratio descedendi = The rule of law on which a judicial decision is based) )‫ = سيادة القانون التي يستند إليها القرار القضائي‬Ratio descedendi(
• No ‫• ال‬
104
• To some extent/sometimes (With examples, please )‫ يرجى التوضيح أكثر‬،‫ في بعض األحيان (مع أمثلة‬/ ‫• إلى حد ما‬
explain further)
(Explain Further) Do judges draw inspiration from treaties ‫(وضح المزيد) هل يستلهم القضاة من المعاهدات أو يبنون نسبهم إلى‬
or base their ratio descedendi on treaties duly ratified by the ‫المعاهدات التي صدقت عليها الحكومة حسب األصول؟‬
government?
Recommendations ‫التوصيات‬
What can be done to support african countries ratify and ‫ما الذي يمكن فعله لدعم الدول األفريقية المصادقة على معاهدات االتحاد‬
domesticate AU treaties? ‫األفريقي وإدماجها؟‬
Whose responsibility is it? ‫هذه مسؤولية؟‬
• AU member states ‫• الدول األعضاء في االتحاد األفريقي‬
• AU ‫• االتحاد االفريقي‬
• Development Partners ‫• شركاء التنمية‬
• CSOs ‫• منظمات المجتمع المدني‬
End of the Questionnaire and thank you for your time. .‫شكرا على مشاركتك‬
4.6 List of Questionnaire Respondents & Interviewees

Index Name of Respondent Gender Age Country Organisation of Respondent
1 Daoud Wafa Female 41 - 50 Tunisia Other (Specify)
years
2 DIOP Male 31 - 40 Senegal Government (Executive)
years
3 MARIE Female 51 - 60 Senegal Government (Executive)
years
4 Female 18 - 30 Tunisia Civil Society Organizastions
years (CSOs)
5 Male 41 - 50 Kenya Constitutional Bodies
years
6 Female 41 - 50 Kenya Government (Judiciary)
years
7 Female 31 - 40 Kenya Constitutional Bodies
years
8 MOMO Ibaranté Male 41 - 50 Burkina Faso Civil Society Organizastions
years (CSOs)
9 DJIGA Male 31 - 40 Burkina Faso Other (Specify)
years
10 HARBAOUI Zouhour Female 41 - 50 Tunisia Other (Specify)
years
11 Samba gaye Male 41 - 50 Senegal Government (Executive)
years
12 Fatim TOURÉ Female 31 - 40 Burkina Faso Other (Specify)
years
13 Gnanou Male 31 - 40 Burkina Faso Government (Judiciary)
years
14 Female 61+ years Tunisia Other (Specify)
15 Hajer Gueldich Female 41 - 50 Tunisia Other (Specify)

years
16 Male 31 - 40 Burkina Faso Government (Executive)
years
17 Male 41 - 50 Burkina Faso Other (Specify)
years
18 NABALOUM Adama Male 31 - 40 Burkina Faso Civil Society Organizastions
years (CSOs)
19 Female 61+ years Tunisia Other (Specify)
20 KERE Goudouma Bruno Male 31 - 40 Burkina Faso Civil Society Organizastions

years (CSOs)
105
21 Dr Boucounta Mendy Male 41 - 50 Senegal Government (Executive)
years
22 Thialy faye Male 31 - 40 Senegal Civil Society Organizastions
years (CSOs)
23 FALL Male 51 - 60 Senegal Government (Executive)
years
24 BADO Christoph Regawoyi Male 31 - 40 Burkina Faso Civil Society Organizastions
years (CSOs)
25 Wanjiku Mbugua Female 51 - 60 Kenya Other (Specify)
years
26 Jamila Debbech Ksiksi Female 51 - 60 Tunisia Government (Legislature)
years
27 Badiane Male 61+ years Senegal Civil Society Organizastions
(CSOs)
28 Female 31 - 40 Kenya Constitutional Bodies
years
29 OUEDRAOGO Wend-zoodo Julie Female 41 - 50 Burkina Faso Civil Society Organizastions
Rose years (CSOs)
30 Bambara Jean de Dieu Male 41 - 50 Burkina Faso Government (Legislature)
years
31 Urbain K. YAMEOGO Male 31 - 40 Burkina Faso Civil Society Organizastions
years (CSOs)
32 Female 61+ years Burkina Faso Civil Society Organizastions
(CSOs)
33 Rafaâ BEN ACHOUR Male 61+ years Tunisia Other (Specify)
34 Ismaïl Ben Khalifa Male 18 - 30 Tunisia Civil Society Organizastions

years (CSOs)
35 El gatri malak Female 18 - 30 Tunisia Other (Specify)
years
36 El hadj Abdoulaye SECK Male 41 - 50 Senegal Civil Society Organizastions
years (CSOs)
37 Dieynaba TOURE BATHILY Female 31 - 40 Senegal Government (Executive)
years
38 G.K.Ndungu Male 41 - 50 Kenya Development Partner
years
39 Male 41 - 50 Kenya Government (Executive)
years
40 Chris Mbiti Male 41 - 50 Kenya Civil Society Organizastions
years (CSOs)
41 VIVIAN MWENDE WAMBUA Female 18 - 30 Kenya Civil Society Organizastions
years (CSOs)
42 Jonesmus Sanga Male 18 - 30 Kenya Other (Specify)
years
43 David Kaboro Male 41 - 50 Kenya Government (Executive)
years
44 Samson Orao Male 31 - 40 Kenya Civil Society Organizastions
years (CSOs)
45 GAYE Samba Male 41 - 50 Senegal Government (Executive)
years
46 Female 31 - 40 Senegal Government (Judiciary)
years
47 BADIANE Male 61+ years Senegal Civil Society Organizastions
(CSOs)
48 Rokhiatou Gassama Female 61+ years Senegal Civil Society Organizastions
(CSOs)
49 Seynabou Ndiaye Diakhate Female 51 - 60 Senegal Government (Executive)
years
106
50 Male 61+ years Senegal Development Partner
51 Doudou DIA Male 41 - 50 Senegal Civil Society Organizastions

years (CSOs)
52 Guilherme Tembe Male 31 - 40 Mozambique Government (Executive)
years
53 Ms. Ibraimo Female 18 - 30 Mozambique Development Partner
years
54 Tobias Miguel Zacarias Male 31 - 40 Mozambique Other (Specify)
years
55 Female 31 - 40 Mozambique Government (Legislature)
years
56 Nerik Salvaterra Male 31 - 40 Sao Tome and Other (Specify)
years Principe
57 Pedro Jr Male 41 - 50 Mozambique Government (Executive)
years
58 Hernane Santiago Male 51 - 60 Sao Tome and Government (Executive)
years Principe
59 Male 31 - 40 Mozambique Other (Specify)
years
60 Female 18 - 30 Sao Tome and Government (Executive)
years Principe
61 Female 31 - 40 Mozambique Government (Executive)
years
62 Neusa Carvalho Female 41 - 50 Sao Tome and Other (Specify)
years Principe
63 Carlos VIctorino Abudala Male 51 - 60 Mozambique Civil Society Organizastions
years (CSOs)
64 Jose Bernardo Rafael Male 31 - 40 Mozambique Civil Society Organizastions
years (CSOs)
65 Carvalho Cumbi Male 31 - 40 Mozambique Civil Society Organizastions
years (CSOs)
66 Female 18 - 30 Mozambique Development Partner
years
67 Sabina Fernandes Nobre dos Ramos Female 51 - 60 Sao Tome and Development Partner
years Principe
68 Female 31 - 40 Mozambique Other (Specify)
years
69 Male 31 - 40 Mozambique Government (Executive)
years
70 Female 31 - 40 Sao Tome and Government (Executive)
years Principe
71 Gisela Madeira Female 31 - 40 Mozambique Other (Specify)
years
72 Alissandra Varela dos Ramos Female 18 - 30 Sao Tome and Development Partner
years Principe
73 Female 31 - 40 Mozambique Government (Judiciary)
years
74 Andre Male 18 - 30 Sao Tome and Civil Society Organizastions
years Principe (CSOs)
75 Moises Mahavene Male 41 - 50 Mozambique Other (Specify)
years
76 Gregório Cardoso Santiago Male 51 - 60 Sao Tome and Government (Executive)
years Principe
77 Egna Sidumo Female 31 - 40 Mozambique Other (Specify)
years
78 Female 41 - 50 Mozambique Civil Society Organizastions
years (CSOs)
107
79 Isac Matola Male 51 - 60 Mozambique Government (Executive)
years
80 Albachir Macassar Male 41 - 50 Mozambique Government (Executive)
years
81 Julieta Cristo Jordão Female 31 - 40 Sao Tome and Other (Specify)
years Principe
82 Female 51 - 60 Mozambique Government (Legislature)
years
83 Neto Joaquim Diquissone Male 31 - 40 Mozambique Government (Executive)
years
84 Sonia J. Nhachungue Female 31 - 40 Mozambique Government (Executive)
years
85 Female 51 - 60 Sao Tome and Other (Specify)
years Principe
86 Male 31 - 40 Sao Tome and Civil Society Organizastions
87 Moussa MBAYE Male 51 - 60 Senegal Civil Society Organizastions
years (CSOs)
88 Female 41 - 50 Sao Tome and Development Partner
years Principe
89 Egide Tamele Male 31 - 40 Mozambique Government (Judiciary)
years
90 Alberto Manhique Male 61+ years Mozambique Government (Executive)
91 Filomena Motiane Female 41 - 50 Mozambique Civil Society Organizastions

years (CSOs)
92 Female 31 - 40 Mozambique Other (Specify)
years
93 João Baptista Henrique Fenhane Male 51 - 60 Mozambique Government (Executive)
years
94 Deodato Capela Male 41 - 50 Sao Tome and Civil Society Organizastions
95 Fredibel Umbelina Male 31 - 40 Sao Tome and Government (Executive)
years Principe
96 Silvestre da Fonseca Leite Male 61+ years Sao Tome and Constitutional Bodies
Principe
97 Constancio Samuel Paulo Nguja Male 31 - 40 Mozambique Government (Executive)
years
98 Female 41 - 50 Mozambique Development Partner
years
99 Ngane NDOUR Male 41 - 50 Senegal Government (Judiciary)
years
100 Female 31 - 40 Kenya Civil Society Organizastions
years (CSOs)
108

Study On Domestication and Implementation of AU Treaties - Synthesis Report

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Study On Domestication and Implementation of AU Treaties - Synthesis Report

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Study on Domestication and

Implementation of African Union

I. Introduction and Background .................................................................... 1

The Quintessence of selected AU treaties and their beatitudes .............................. 8

Treaty-making: The Ratification and Domestication Process ................................ 27

Current Status of Ratification and Domestication of African Union Treaties ....... 39

Understanding State Ratification and Domestication or Implementation

Conclusion and Policy Recommendations.............................................................. 95

Bibliography ............................................................................................................. 100

Appendixes .............................................................................................................. 101

Democratic governance, transparency and human rights

Rights and welfare of the child and the youth

Full domestication and implementation of AU instruments will have a tremendous positive

• Governments should incorporate AU instruments’ obligations into their constitutions,

• AU member states must not neglect their responsibility to finance healthcare.

- Reference to or/and starting from human rights treaties;

• The African Youth Charter

• African Charter on the Rights and Welfare of the Child

• African Charter on Human and People’s Rights in Africa

• African Charter on Democracy, Elections and Governance

• African Union Convention on Preventing and Combating Corruption

1. To assess and determine the level of compliance by AU member states on key

The AU Commission, Permanent Representatives Committee and relevant arms of national

Rationale for countries’ selection

The six countries were selected on the basis of:

1.2 The African Convention on Preventing and Combating Corruption

Context and Background

The convention promotes various levels of co-operation in order to eradicate corruption at

Context and Background

Context and Background

Equal opportunity in employment, remuneration, choice of occupations, participation in

1.5 The African Youth Charter

Context and Background

The AUC is commissioned to collaborate with governmental, non-governmental institutions

Context and Background

2.1 Treaty Making and Formation

University Press: Tokyo, Japan.

7 Nakhjavanii, Salim A (2010), op.cit

2.1.2. Adoption and Authentication of the Treaty Texts

14 I.A.Sheirer (1994). Starke’s International Law. 11th edition, London: Butterworths.

Beyond signature as a consensus to be bound, is also expression by ratification which in

2.2. Benefits of Treaty Making: the Flavor for African States

35 See: Article 24(1 - 3) of the VCLT

the importance of treaties.

Benefits of ratification and domestication of the 6

Broaden the rights of their citizens

2.2.1 Domestication and implementation

Beyond the constitutional differences linked to the requirement of internalisation or not of

2.2.2 A regional strategy

Current Status of Ratification and Domestication of African

Sao Tome & Principe

Protocol to the Date Of 05/03/1984 17/12/2003 29/01/2016 23/09/1981

African Youth Date Of 25/03/2008 28/06/2008 25/10/2007 01/02/2010 09/10/2007 31/03/2008

African Charter Date Of 27/02/1992 01/02/2010 18/05/1992 16/06/1995

African Charter Date Of 02/08/2007 28/06/2008 27/05/2010 01/02/2010 15/12/2008 27/01/2013

Country Charter on African Charter on Charter, Charter on the Democracy, on Preventing

Drivers of challanges of ratification and domestication of AU

3.1 African versus UN treaty ratifications

3.2 Justification and rationale of African treaties

3.3 Domestication Experiences and Gaps

Status of Ratification of the AU Treaties covered by the AU Treaties project

Ratified by Ratified by Increase

African Charter on the 48 49 +1